Evans v. Labdale , 6 Del. 212 ( 1881 )


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  • Concurring in the conclusion just announced in this case, I will take occasion to add that, in my opinion, such must have been the decision of the court on the question presented, if it had arisen prior to the passage of the statutes referred to, of 1873 and 1875, and while the principles and doctrine of the common law were yet in full force and effect on the subject in this State. So far as I have had time to examine the authorities at common law upon it, I do not find that this particular case, or any one presenting this precise question, has ever before arisen, in England, or in this country, although similar sales by husband and wife of real estate belonging to the wife, in which he bad, at the time, an initiate estate, as tenant by the curtesy at common law, must have often been made, in times past, in both countries. But, in regard to the essential and indispensable requisite of the seizin in fact, either actual or constructive, of the *Page 217 wife in the estate of inheritance in question, I find it has been ruled at common law that, if the husband after the birth of issue capable of inheriting the wife's estate in the premises, makes a feoffment in fee of them to another, and the wife dies, the feoffee shall hold them during the life of the husband, and the heir of the wife shall not, during his life, avoid it by sur cui in vita, because it could not be a forfeiture for the reason that his estate of tenant by the curtesy was but initiate and not consummate; and now, since 32 H. 8, chap. 28, the issue shall not enter in such case till after the husband's death, which shows that in this feoffment his interest and title to be tenant by the curtesy are involved, and pass by it to the feoffee, though not to such purpose as to make him tenant by the curtesy, which none but the husband, in any case, can be. For the same reason, it seems, that after issue bom, he may lease the land for his own life. 3 Bac. Abr., 17; Tit., Curtesy of England, E. Baron and feme have issue, and after join in suffering a common recovery, the feme was within age, and appeared by attorney, yet after her death, it seems, the heir could not assign this for error till after the husband's death. Ibid. But baron and feme, seized of lands in right of the feme (whereof the husband was entitled to be tenant by the curtesy in case he survived her) levied a fine, which was afterwards reversed as to both, for the non-age of the feme, the husband shall have it again, as tenant by the curtesy, because the fine levied was utterly avoided by the reversal of it. 3 Bac. Abr. 19; Tit., Curtesy of England, F.; Charnock, v. Worsely, Cro. Eliz., 129; The King and Parker v. Weba and Wife, Cro. Ia., 482. If the husband, after issue born, makes a feoffment of the wife's lands, the feoffee shall hold during the life of the husband, for his feoffment was not a forfeiture. Co. Lit., 30 a, Com. Dig., Tit. Estate (D. 1). But, by the feoffment, his title to be tenant by the curtesy was extinguished; and, therefore, if the feoffment was upon condition, and he enters for the condition broken, he shall not afterwards be tenant by the curtesy. Co. Lit., 30 b, Com. Dig. Tit., Estates (D. 1). Tenancy by the curtesy initiate is a vested interest grantable by feoffment. 3 Dall., 482; Co. Lit., 30 a, 29 b, 31 a, 67 a. *Page 218

    Now, if such were the principles of the common law in relation to the estate and title of a tenant by the curtesy initiate, nearly at the time of Lord Coke, why should not the joint and voluntary conveyance of the husband and wife in this case by deed of bargain and sale in fee simple, for its full value in money, to the purchaser, Lobdale, the defendant, of all the right, title, and estate of each of them in the lands and tenements in question be held at common law, and independent of our recent statutes in relation to the rights of married women, to extinguish and annul all the right, title, and estate of the husband in them, either now or hereafter, in case he should survive the wife, as tenant by the curtesy? And by their joint act and deed, not only has the husband sold and conveyed to the purchaser all his vested interest and estate in the premises for the price and consideration agreed on between them, but the wife has also voluntarily done the same with all her right, title and estate in them in immediate and absolute fee to the defendant, and has, thereby, completely parted with her seizin both in law and in fact in the premises, and with all claim to it now or hereafter, unless she should repurchase, or become repossessed of them hereafter and during the lifetime of the husband, in which event, should she afterwards die and the husband survive her, remote and improbable as these contingencies must be, it is difficult to perceive how the defendant could even then possibly be prejudiced by the lien of the judgment in question against the husband and his estate as tenant by the curtesy in that case in the premises.

Document Info

Citation Numbers: 6 Del. 212

Judges: <italic>Wales,</italic> J., delivered the opinion of the court.<page_number>Page 214</page_number>

Filed Date: 1/5/1881

Precedential Status: Precedential

Modified Date: 7/5/2016