possession, so as to be able to maintain trespass for entering upon the land and cutting the timber. To entitle the husband to curtesy, he must be a citizen and not an alien, for an alien husband was not at common law entitled to curtesy, any more than an alien wife was entitled to be endowed; and the wife must have had such a seisin as will enable her issue to inherit; and therefore, if she claims by descent or devise, and dies before entry, the inheritance will go, not to her heir, but to the heir of the person last seised, and the husband will not have his curtesy.

a

The rule has been carried still further in this country; and in one state, where the title by curtesy is in other respects as in England, it is decided that it was sufficient for the claim of curtesy that the wife had title to the land, though she was not actually seised, nor deemed to be so. The law of curtesy in Connecticut is made to symmetrize with other parts of their system; and in that state, ownership without seisin, is sufficient to govern the descent or devise of real estate.c

At common law, the husband could not be tenant by the curtesy of a used but it is now settled in equity, that he may be a tenant by the curtesy of an equity of redemption, and of lands of which the wife had only a seisin in equity as a cestui que trust. So, if money

be agreed to be laid out *in the purchase of land, *31

⚫ Jackson v. Johnson, 5 Cowen's Rep. 74. Adair v. Lott, 3 Hill, 182. Bush v. Bradley, 4 Day's Rep. 298. Kline v. Bebee, 6 Conn. Rep. 494. The severity of the ancient law on the right to curtesy is much relaxed in England as well as in this country, and a constructive seisin of the wife is sufficient to sustain the husband's right to his curtesy, where it is not rebutted by an actual disseisin. See De Grey v. Richardson, and Sterling v. Penlington, sup. and Ellsworth v. Cook, 8 Paige's Rep. 643.

d Gilbert on Uses, by Sugden, 48. 440.

• Watts v. Ball, 1 P. Wms. 108. In Virginia, by statute, (1 R. C. 1819,) the husband has his curtesy in a trust estate. So it is in Maine, and deemed to be so throughout the country. 1 Sumner, 128.

C

the money is considered as land in the view of a court of equity, and the husband will be allowed his curtesy. Though the husband be entitled to his curtesy in a trust estate, it has been a questionable point, whether it must not be such a trust estate as will give him an equitable seisin. The wife must have had a seisin of the freehold and inheritance, simul et semel, either at law or in equity, during the coverture. In Roberts v. Dixwell, Lord Hardwicke held, that the husband might have his curtesy in an estate devised to the wife for her separate use; but afterwards he declared, that a seisin in law, or in equity, was essential to a tenancy by curtesy. The opinions of Lord Hardwicke, in Hearle v. Greenbank, and Roberts v. Dixwell, are conflicting, and cannot be reconciled; and it would seem to have followed, that if the equitable freehold was out in trustees for the separate use of the wife, and kept distinct during the coverture from her equitable remainder in fee, that she wanted that seisin of the entire equitable estate requisite to a tenancy by the curtesy. But it is now settled otherwise, and the husband is tenant by the curtesy if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during the coverture. The receipt of the rents and profits are a sufficient seisin in the wife. And if lands be devised to the wife, or conveyed to trustees for her separate and exclusive use, and with a clear and distinct expression that the husband was not to have any life estate or

Sweetapple v. Bindon, 2 Tern. 536. Watts v. Ball, 1 P. Wms. 108. Chaplin v. Chaplin, 3 ibid. 229. Cashborne v. Scarfe, 1 Atk. 603. Cunningham v. Moody, 1 Ves. 174. Dodson v. Hay, 3 Bro. 404.

b Hearle v. Greenbank, 1 Ves. 298. 3 Atk. 716, S. C.

c 1 Atk. 607.

d Pitt v. Jackson, 3 Bro. 51. Morgan v. Morgan, 5 Madd. Rep. 248, Amer. ed. If the wife's lands be sold in partition after her death, the husband, as tenant by the curtesy, will be entitled to the use of the proceeds for life upon giving security for repayment at his death. Clapper v. Livergood, 5 Watts, 113.

*32

other interest, but the same was to be for the wife and her heirs; in that case, the Court of Chancery will consider the husband a trustee *for the wife and her heirs, and bar him of his curtesy. But the husband of a mortgagee in fee is not entitled to his curtesy, though the estate becomes absolute at law, unless there has been a foreclosure, or unless the mortgage has subsisted so long a time as to create a bar to the redemption. The rule has now become common learning, and it is well understood that the rights existing in, or flowing from the mortgagee, are subject to the claims of the equity of redemption, so long as the same remains in force.

Curtesy applies to qualified as well as to absolute estates in fee, but the distinctions on this point are quite abstruse and subtle. It was declared in Paine's case, to be the common law, that if lands had been given to a woman, and the heirs of her body, and she married and had issue which died, and then the wife died without issue, whereby the estate of the wife was determined, and the inheritance of the land reverted to the donor, yet the husband would be entitled to hold the estate tail for life as tenant by the curtesy, for that was implied in the gift. So, where an estate was devised to a woman in fee, with a devise over, in case she died under the age of twenty-one, without issue, and she married, had issue which died, and then she died, under age, by which the devise over took effect; still, it was held, the husband was entitled to his curtesy. But there are several cases in which curtesy, as well as dower, ceases upon the de

95.

* Bennet v. Davis, 2 P. Wms. 316. Cochran v. O'Hern, 4 Watts & Serg.

b This is so stated in Chaplin v. Chaplin, as reported in 7 Viner, 156, pl. 23; and the same thing is declared by Lord Hardwicke, in a case which Lord Loughborough cited from his note book, in 2 Ves. jr. 433.

4 Buckworth v. Thirkell, 3 Bos. & Pull. 652, note.

termination of the estate; and this upon the maxim, that the derivative estate cannot continue longer than the primitive estate, cessante statu primitivo cessat derivativus. As a general rule, curtesy and dower can only be commensurate with the estate of the grantee, and

must cease with the determination of that estate. *33 They cease necessarily where *the seisin was wrongful, and there is an eviction under a title paramount. The distinction is principally between a condition and a limitation. If the wife's seisin be determined by a condition in deed expressly annexed to the estate, and the donor or his heirs enter for breach of the condition, the curtesy is defeated, for the donor reassumes his prior and paramount title, and all intermediate rights and encumbrances are destroyed. On the other hand, a limitation merely shifts the estate from one person to another, and leaves the prior seisin undisturbed. The limitation over takes effect, and the estate next in expectancy vests without entry, and the curtesy is preserved. If, however, instead of being a simple limitation, it be a conditional limitation, it is said, that, in that. case, the curtesy would be defeated, for the conditional limitation cuts off, or produces a cesser of the estate upon which it operates. The cases of an estate tail determining by failure of issue, and of a fee determining by executory devise or springing use, are exceptions to the general rule, denying curtesy or dower after the determination of the principal estate.a

Butler's note 170, to

a Buckworth v. Thirkell, 3 Bos. & Pull. 652, note. Co. Lit. 241, a. Roper on Husband and Wife, vol. i. 36, 37. Preston on Abstracts of Title, vol. iii. 384. Park on Dower, 172. 186. Mr. Butler, in speaking of limited fees, which by the grant are to continue only to a certain period, observes, that curtesy and dower will continue after the expiration of the period to which the fee was to continue. But where the fee was originally created by words importing an absolute fee, and by subsequent words was made determinable upon soine particular event, there the curtesy and dower cease with the estate to which the event is annexed. The case of

*Though the wife's dower be lost by her adultery, no such misconduct on the part of the husband will work a forfeiture of his curtesy; nor will any forfeiture of her estate by the wife defeat the curtesy.* The reason, says Lord Talbot, why the wife forfeits her dower, and the husband does not forfeit his curtesy, in cases of misconduct, is because the statute of Westm. 2, gave the forfeiture in one case and not in the other." This is showing the authority, but not the reciprocal justice or equity of the distinction. There is no parity of justice in the case. So, the husband, as well as any other tenant for life, may forfeit his curtesy by a wrongful alienation, or by making a feoffment, or levying a fine importing a grant in fee, suffering a common recovery,

Buckworth v. Thirkell, stands in the way of the doctrine of Mr. Butler, and Lord Mansfield decided, that the case before him was one of a contingent, and not of a conditional limitation. Lord Alvanley, in 3 Bos. & Pull. 654, cites the distinction of Mr. Butler, as worthy of attention, and Mr. Roper has varied it, and discussed it. Neither of them, as it would seem, have traced the lines of the distinction with satisfactory clearness and precision, or shown any sound principle on which it rests. The subject is replete with perplexed refinements, and it is involved too deep in mystery and technical subtleties, to be sufficiently intelligible for practical use. Here arises a proper case for the aid of the reformer. When any particular branch of the law has departed widely from clear and simple rules, or, by the use of artificial and redundant distinctions, has become uncertain, and almost incomprehensible, there is no effectual relief but from the potent hand of the law-giver.

• Preston on Abstracts of Title, vol. iii. 385. Smoot v. Lecatt, 1 Stewart's Ala. Rep. 590. Mass. Revised Statutes, 1835. Whether a divorce a vinculo will destroy curtesy, depends on circumstances, and there is some variety in the laws of the several states. If the cause of the divorce be for causes arising before marriage, the right to curtesy, as well as to other rights growing out of the marriage, is gone, but if for causes subsequent to marriage, the rule is not absolutely stable and uniform. See Hilliard's Abr. vol. i. 51, 52.

Sidney v. Sidney, 3 P. Wms. 276.

⚫ In Indiana, the unequal rule is corrected, and the husband and wife are treated alike on this point, and if he leaves his wife and lives with an adultress, he loses his right of tenancy by the curtesy. Revised Statutes of Indiana, 1838, p. 240.