« ForrigeFortsett »
4. Her competency, in the view of a court of equity, to deal with her property:
6. Other rights and disabilities incident to the marriage union.
L The right which the husband acquires by marriage in the property of the wife. (1.) To her lands in fee.
If the wife, at the time of marriage, be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and profits during their joint lives.» It is a freehold estate in the husband, since it must continue during their joint lives, and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, unless he be a tenant by the courtesy. It will be an estate in him for his own life if he dies before his wife, and in that event, she takes the estate again in heT own right. If the wife dies before the husband, without having had issue, her heirs immediately •succeed to the estate. If there has been a child *131 of the marriage born alive, the husband takes the estate, absolutely for life, as tenant by the courtesy, and on his death the estate goes to the wife, or her heirs; and in all these cases, the emblements growing upon the land, at the termination of the husband's estate, go to him, or his representatives.
During the continuance of the life estate of the husband, he sues in his own name for an injury to the profits of the land; but for an injury to the inheritance, the wife
• Co. IAtt. 351. a. In Georgia the rights of the husband upon marriage in the real estate of the wife are vastly enlarged. That estate passes to the husband absolutely the same as personal property, and if the wife dies intestate, the husband is entitled to administer upon her estate, real and personal, and recover and enjoy the same without being subject to distribution. On the other hand, if the husband dies intestate without issue, the wife inherits his whole estate, real and personal, subject to his debts. Hotckkin, Codification of the Statute Law of Georgia, 1845. p. 426.
must join in the suit, and if the husband dies before recovery, the right of action survives to the wife.* If the husband himself commits waste, the coverture is a suspension of the common law remedy of the wife against him. The husband has an interest in the freehold estate of his life, which may be seised and sold on execution, and if the assignee, or creditor of the husband, who takes possession of the estate, on a sale on execution of his freehold interest, commits waste, the wife has her action against him, in which the husband must join; for though such assignee succeeds to the husband's right to the rents and profits, he cannot commit waste with impunity.1" So, also, the heir of the wife may sue the husband for the waste, and no doubt the court of chancery would stay by injunction the husband's waste, on behalf of the wife herself. But it seems, that from want of privity, the heir of the wife cannot bring an action of waste against the assignee of the husband, though it may be brought against the husband himself, for waste done by his assignee, and he shall recover the land of the assignee.0 The subtle distinction in Walkers case,* and which we have followed, was, that if the tenant by the courtesy assigns over his estate, the heir of the wife can sue him for waste done after the assignment; but *132 if the heir *grants over the reversion, the grantee cannot sue the husband, for the privity of the action is destroyed. He can only sue the assignee of the husband, for as between them there is a privity of estate.
If an estate in land be given to the husband and wife, or a joint purchase be made by them during coverture, they are not properly joint tenants, nor tenants in com
» Weller and others v. Baker, 2 Wils. Rep. 423,424. It is there said to be difficult to reconcile the cases, as to the joinder of husband and wife, in actions relating to the land.
b Bab and Wife v. Perley, 1 Greenleaf's Rep. 6. Mattocks T. Stearns, 9 Vermont Rep. 326.
< Bates v. Shraeder, 13 Johns. Rep. 260. I [j 3 Co. 22.
mon, for they are but one person in law, and cannot take by moieties. They are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole.* This species of tenancy arises from the unity of husband and wife, and it applies to an estate in fee, for life, or for years. If the grant be made to the husband and wife and B., or to the husband and wife and B. and C, the grantees are all joint tenants as between themselves, but the husband and wife are tenants by entireties, as between each other; and as for all the purposes of ownership, the husband and wife are but one person in law, they take only a moiety of the land in the one case, and only a third of it in the other.b If they are tenants by entireties of a term of years, the husband may alien the entirety so as to bind the wife.0 The same words of conveyance, which would make two other persons joint tenants, will make the husband and wife tenants of the entirety. This is a nice distinction laid down in the old books, and it continues to this day to be the law."1 *The husband alone may *133 grant or charge the wife's land during their joint
• Preslon on Estates, Vol. 1. 131.
b Litt. sec. 291. Barber v. Harris, 15 Johnson, 617. Johnson v. Hart,
6 Watts $ Serg. 319.
e Grate v. Locroft, Cro. Eliz. 287. When husband and wife hold the entirety with right of survivorship he cannot alien the entire estate, but the husband may execute a mortgage of his interest, or he may make a lease in his own name, or join with his wife. Jackson v. M'Connetl, 19 Wendell, 175. In the state of Ohio, no joint tenancy exists, and the doctrine of survivorship is unknown, even as to a devise to husband and wife, and they take as tenants in common, and not as tenants of the entirety. Sergeant v. Steenberger, 2 OAio Rep. 305. Wilson v. Fleming, 13 Id. 68.
e Liu. sec. 291. 656. Co. Litt. 187. b. 188. a. 351. Bro. Abr. tit. Cui in vita, 8. 2 Black's Rep. 1214. Doe v. Parratt, 5 Term Rep. 652. 16 Johns. Rep. 115. 5 Johns. Ch. Rep. 437. Barber v. Harris, 15 Wen</<!!, 615. Denv. Hardenbergh, 5 J/akted'»fl«j,. 42. 3 Randolvh's Rep. 179. 5 Mass. Rep. 523. 1 Dana's Kentucky Rep. 37.243. Taul v. Campbell,
7 Yerger, 319. Den v. Whitemore, 2 Der. $ Bat. 537. Greenlaw v. Greenlaw, 13 Maine Rep. 186, Weston, Ch. J. Dickinson v. Codwise, 1 Sanlives, and if he be tenant by the courtesy, during his own life. He cannot alien or encumber it, if it be a freehold estate, so as to prevent the wife, or her heirs, after his death, from enjoying it, discharged from his debts and engagements. But from the authorities, when closely examined, says Mr. Preston,* it seems that the husband has the power to transfer the whole estate of his wife, and the estate will be in the alienee of the husband, subject to the right of entry of the wife, or her heirs, and which entry is necessary to revest the estate after the husband discontinues it. She was driven at common law to her writ of right, as her only remedy; but Lord Coke says,b he found that in the times of Bracton and Fleta, the writ of entry cui in bita, was- given to the wife, upon the alienation of her husband, and this was her only remedy in the age of Littleton.0 That writ became obsolete after the remedial statute of 32 Hen. VIII. c. 28, which reserved to the wife her right of entry, notwithstanding her husband's alienation; and the writ of entry lay even if she had joined with her husband in a conveyance by feoffment, or bargain and sale, for such conveyances
ford Ch. R. 214. 222. See infra, vol. iv. p. 362. Mr. Preston (Abstracts of Title, vol. ii. p. 41.) says, that as the law is now understood. husband and wife may, by express words, be made tenants in common, by a gift to them during coverture. The Ass. V. Chancellor, in Dias & Burn v. Glover, 1 Hoffman's Ch. Rep. 71, questions the solidity of Mr. Preston's opinion. The law in the text does not exist in Connecticut, but the husband and wife are joint tenants in such case, and the husband may alone convey his interest. Whittlesey v. Fuller, 11 Conn. Rep. 337.
» Essay on Abstracts of Title, vol. i. p. 334, 435, 436. Sergeant Williams, in his note to Waller v. Hill, 2 Sound. 180. n. 81, concludes that as estates for life being freehold estates, and commencing by livery of seisin, could only be avoided by entry, leases for life by the husband were voidable only, but that leases for term of years were absolutely void on the husband's death, and this Chancellor Johnson considers the better doctrine, and this, I think, is the correct conclusion. Brown v. Lindsay, 2 Hill's S. C. Ch. Rep. 544.
b 2 Inst. 343.
< Litt. sec. 594. The extent of the remedy under this ancient writ, msy be seen in Bro. Ahr. tit. Cui in eita, and F. N. B. 193. h. t.
were deemed the sole act of the hushand, as the wife was not separately examined.a (2.) To her life estate.
*If the wife, at the^ time of the marriage, hath *134 an estate for her life, or for the life of another person, the husband becomes seised of such an estate in right of his wife, and is entitled to the profits during the marriage. On the death of the wife, the estate for her own life is gone, and the husband has no further interest in it. But if she have an estate for the life of another person, who survives her, the husband becomes a special occupant of the land during the life of such other person. After the estate for life has ended, the land goes to the person entitled in reversion or remainder, and the husband, quasi husband, has no more concern with it. This estate the husband can only sell or charge to the extent of his interest in it, and his representatives take as emblements the crops growing at his death.
• Co Litt. 326. a. Tbe statute of 32 Hen. VIII. was re-enacted in NewYork, in 1787, by act, 10th sess. ch. 48. But it does not appear in the revision of 1830, and the action of ejectment was doubtless deemed commensurate with every right to the recovery of land. New-York Reeised Statate», vol. ii. p. 303. In Massachusetts, it is held, that the statute of 32 Hen. VIII. protecting the wife's inheritance or freehold from the husband's act, is ssill in force in that state " as a modification and amendment to the common law." Bruce v. Wood, 1 Metcalf, 542. In New-Jersey, by statute, it is declared that the husband can do no act or make any default to affect or work any prejudice to the wife's inheritance or freehold, and after hie death she may lawfully enter and hold the same notwithstanding. Elmer's Dig. 77. This is the universal law on the subject. In Maryland, under the statute of 1786, the husband may elect, in right of his wife, to take her ancestor's lands at the valuation of commissioners, and pay or give bonds to the co-heirs of the wife for their just proportion of the estate, and that election vests in him the fee as a purchaser, to the exclusion of the wife. Stevens v. Richardson, 6 Harr. $ Johns. Rep. 156_ In Millar v. Shackleford, 4 Dana, 278, it was held, that a woman, whose estate had been wrongfully aliened by her husband, might recover it in ejectment after his death, without notice to the tenant to quit, and no acquiescence in the tenant's holding, short of 20 years, would bar her.