Gambar halaman

for salt; and that the loss occasioned by the in- And the defendant having offered the foljury in the delay of the vessel, preventing her lowing prayer: arrival till after the fishing season, as she was “ That if the jury shall believe from the evi. compelled to unload and take in another cargo dence that the collision between the Tasso ard of salt, amounted to between 10 and 11 cents the Francis Depay was occasioned by the per bushel, making the loss in the whole cargo breaking of her hawser and fish tackle, yet, $2,101.20, and contended that they should be from the said facts, the jury are not warranted allowed to give this evidence and to recover in inferring that the said vessel, the Tasso, at damages for the said loss, estimating the salt the time of her sailing: was unseaworthy." by the price at Georgetown in the fishing sea- The court gave the instruction as prayed, to son when the vessel would have arrived. which the plaintiffs, by their counsel, excepted.

But the court refused to allow the said evi. And the plaintiffs then prayed the court to indence to be given by the plaintiffs, to which struct the jury, that if they believe from the the plaintiffs, by their counsel, excepted. evidence that the collision took place as above Plaintiffs' third bill of exceptions:

stated, then such breaking of the said hawser And the plaintiffs having, after the forego- and tackle is no excuse for the collision on the ing evidence, farther offered evidence to prove part of the defendants; which the court rethat it is the usage of vessels coming out of the fused; to which refusal also the plaintiffs exdocks of Liverpool into the river to have their cepted. anchors slung in a tackle ready to be thrust over the bows, and in a situation to be dropped Mr. Chief Justice TANEY delivered the opinimmediately on passing through the lock con- ion of the court: necting the dock with the basin, and before This case arises from a collision in the port passing from the latter into the river; that the of Liverpool, between the bark Tasso and the anchor was not put over the bow nor attempt- ship Francis Depau, in which the latter sused to be so done in the present case, on board tained considerable injury. The vessels were the Tasso, until this vessel had passed into the both American; the Francis Depau being owned river and was approaching the Francis Depau; by the plaintiffs in error, and The Tasso by the and the defendant having offered in evidence defendant. the deposition of Frederick Lewis to prove that It appears from the evidence, that at the time the Tasso, in passing from the basin through the accident happened, the Tasso was in charge the piers thereof into the river had the said of a regular pilot, leaving the Prince's dock on vessel in check by a hawser extending there- her homeward voyage; and the Francis Depau from to one of the said piers, which hawser was at anchor in the harbor, laden with salt, parted as the vessel cleared the pier head, and and ready to sail. And in order to prove that that the fish pennant or tackle suspending the the injury arose from the unskillful manageanchors of said vessel broke in the attempt to ment of the Tasso, the plaintiffs offered in eviget them over the bow of the vessel as afore- dence that it is the usage of vessels coming out said, and they thereupon fell upon the deck of of the docks of Liverpool into the river, to have the vessel; and the plaintiffs having further their anchors slung in tackle, ready to be offered evidence by the pilot of the Francis *thrust over the bows, and in a situation [*32 31*] Depau, to prove that defendant's *vessel to be dropped immediately on passing through appeared badly furnished, and that the mate the lock which connects the dock with the thereof (the master being absent) at the time, basin, and before passing from the latter into declared that he had not a rope on board fit to the river; and that the anchor of the Tasso was hang a cat.

not put over the bow, nor was it attempted to And in a further trial of this cause, the be done, until she had passed into the river, plaintiffs, after the depositions for the plaint, and was approaching the Francis Depau. iffs and defendant were read, having offered The defendant then offered testimony to show evidence to show that in the management of a that in passing from the basin, between the vessel when the fish tackle breaks, and it is piers into the river, the Tasso was held in check important that the anchor should be thrown by a hawser fastened to one of the piers, but out, that it ought to be and can be accomplish that the hawser broke just as the vessel cleared ed in a short time by fixing another rope by a the pier head; and the pilot perceiving that she strop to the anchor and heaving it over the was approaching the plaintiffs’ ship, thereupon bows, and that such new fixture can be applied gave orders to get an anchor ready. The in a minute or two.

anchors were accordingly fixed as soon as pos. sible, in the manner that is customary in going from the port of Liverpool, was not answeraout of the port; and an attempt was made to ble for damages occasioned by the fault of the get one of them over the side, but the tackle pilot. But in the case of the Attorney-General broke, and both anchors fell on deck, and the v. Case (3 Price, 302), the same question was vessel struck the Francis Depau, and thereby discussed in the argument before the Court of occasioned the injury for which this suit is Exchequer, and it appears to have been the brought; that everything was done on board opinion of that court, that the master and the Tasso, according to the directions of the owner were liable in the same manner as if the pilot, and every effort made to prevent the col pilot had not been on board. lision; but that it was blowing fresh, and the The question, it is true, did not necessarily tide setting towards the plaintiffs' ship, and the arise in the last-mentioned case, for the vessel Tasso would not mind her helm.

gansett, 1 Blatchf., 211; The Rhode Island, Abb. For the loss of the cargo on board the vessel at Adm., 100; The Narragansett, Olcott, 388; Van- the time of the collision the measure of damages tine v. The Lake, 2 Wall. Ć. C., 52; Swift v. is the value of the goods at the place of shipment. Brownell, 1 Holmes, 467; The Morning Star, 4 Biss., Smith v. Condry, 17 Pet., 20; The Joshua Barker, 62; The Sunnyside, 1 Brown Adm. 415; The May- Abb. Adm., 215; The Mary J. Vaughan, 2 Ben., 47. flower, 1 Brown Adm., 376; The Transit, 4 Ben., 138; Cost of lading and interest added from time of The Favorita, 4 Ben., 12%;

The Emily, 4 Ben., 235; collision. The Ocean Queen, 5 Blatchf., 493; Dyer The Mayflower, 5 Am. L. T. Rep., 367; 2 W. Rob., v. Nat'l Nav. Co., 24 Int. Rev. Rec., 198. 279; 3 W. Rob., 283; 1 Wall., 269; 6 McLean, 238 ; 2 The market price at port of delivery may be Ben. Rep., 125; 7 Blatchf., 385 ; 4 Blatchf., 489; 3 measure of damages where it appears that the colo Duer, 468; 6 Duer, 315, 363; 3 Fost. (N. H.), 171; 16 lision prevented a delivery. The Joshua Barker, N. Y., 489; The Stormless, 1 Low., 153.

Abb. Adm., 215. Expected profits except where accident was in- Damages were allowed in the following cases tentional or malicious are not allowed. The New- which were determined by the peculiar circumhall, 3 Ware, 105.

stances of the accident : The Ann Caroline, 2 Wall., But in cases of willful and malicious collision 538; Halderman v: Beckwith, 4 McLean, 286; Brady anticipated profits or a sum above the actual dam- ». The New Philadelphia, 19 How. Pr., 315; Naugaage may be allowed as exemplary damages. Ibid; tuck Transportation Co. v. The Rhode Island, 6 N. Ralston v. The State Rights, Crabbe, 22.

Y. Leg. Obs., 103.

was at anchor in the River Mersey when the To rebut this testimony, the plaintiff offered disaster happened; and a vessel at anchor was in evidence, by the pilot, that the defendant's not bound to have a pilot on board. If in that ressel appeared to be badly furnished, and that situation the master thought proper to employ at the time the accident happened, the mate one, the pilot was undoubtedly his agent, and who had charge of her under the pilot (the consequently he was responsible for his acts. master being absent), declared that he had not But in *deciding the case, the court ex. [*34 a rope on board fit to hang a cat; and further pressed their opinions on the two statutes of offered in evidence, that where the fish tackle Geo. III., before mentioned, in cases where breaks, and it is important that the anchor pilots were required to be on board; and held should be thrown out, it can be accomplished that the provisions of the 52 Geo. III., exemptin a minute or two, by fixing another rope by a ing masters and owners from liability, did not strop to the anchor and heaving it over the bows. extend to cases embraced by the local pilot act

Ai the trial, several exceptions were taken for Liverpool, and strongly intimated that there by the plaintiffs to different instructions given was a distinction between the obligation to take by the court to the jury; and the verdict and a pilot under a penalty, and the obligation to judgment in the Circuit Court having been in pay full pilotage to the first that offered, favor of the defendant, the case has been whether he was taken or not. brought here for revision by a writ of error Since these decisions were made in the sued out by the plaintiffs. We proceed to ex- King's Bench and Exchequer, the 37th Geo. amine the directions excepted to, in the order III. has been repealed by the 5th of Geo. IV., in which they appear in the record.

and the 52 Geo. III. has been repealed by the Upon the evidence above stated, the defend- general pilot act of the 6th of Geo. IV.; and ant asked the court to instruct the jury that these two statutes of Geo. IV. were the laws in under the statutes of Great Britain, of the 37 force at the time of the collision in question. But 33*] *Geo. III., ch. 78; 52 Geo. III., ch. 39, although some changes were made in the Liver. and 6th of Geo. IV., ch. 125, the defendant pool pilot act in the first mentioned statute,and was not responsible for any damage occasioned in the general pilot law by the second, yet in reby the default, negligence, or unskillfulness of gard to the subject now under consideration, the pilot. The court gave this instruction, these two statutes are the same in substance with and that is the subject of the first exception. the preceding ones which they respectively re

The collision having taken place in the port pealed; and the adjudged cases above mentioned of Liverpool, the rights of the parties depend apply with the same force to the question upon the provisions of the British staties, before us, as if they had been made since the then in force; and if doubts exist as to ir passage of the acts of Geo. IV. true construction, we must of course augt In determining, however, the true constructhat which is sanctioned by their own courts. tion of these acts of Parliament, we are not left

The 52 Geo. III., mentioned in this excep- to decide between the conflicting opinions of tion, is a general act for the regulation of pilots the King's Bench and Court of Exchequer. and pilotage, within the limits specified in the The same question has since, on more than one law, and requires the masters of vessels under occasion, arisen in the British Court of Ada certain penalty to take a pilot, and provides miralty, and the decision in the King's Bench that no owner or master shall be answerable has been constantly sustained; and we presume for any loss or damage, nor be prevented from it is now regarded as the settled construction recovering on any contract of insurance, by of these pilot acts. (Abb. on Ship., Shee's edireason of any default, or neglect on the part of tion, 184, n. 2.; The Maria, 1 Rob. New Adthe pilot. But this statute did not repeal the miralty Reports, 95; The Protector, 1 Rob. previous one of 37 Geo. III., for the regulation New Adm. Rep., 45; The Diana, 1 Rob. New of pilots conducting ships into and out of the Adm. Rep.) We think, therefore, that the port of Liverpool; and the last-mentioned law Circuit Court was right in the first instruction required the master to pay full pilotage to the given to the jury. first who should offer his services, whether he The second also is free from objection. The was employed or not. This act did not, how question there was as to the rule of damages in ever, impose any penalty for refusal; and con- case the plaintiffs should show themselves entitained no clause exempting the master and tled to a verdict. They offered to prove that owner from liability for loss or damage arising if the ship had not been prevented from sailing from the default of the pilot, where one was by the injury complained of, she would in due taken on board.

course have arrived in Georgetown (as was inUpon these acts of Parliament, the Court of tended when the lading was taken in) in time King's Bench held, in the case of Caruthers v. for the sale of her cargo at the fishing season Sydebotham (4 Maule & Selw., 77), that the in the Potomac River, when *there is a [*35 master or owner of a vessel trading to and great demand for salt; that the injury delayed



her, and prevented her arrival until the season Tasso is not answerable; in the two latter he was over, and thereby made a difference of ten is. The court, therefore, were right in refus. or eleven cents per bushel in the value of the ing the direction asked for by the plaintiffs, salt at her home port, and occasioned a loss but erred in giving the one before mentioned upon the cargo of $2,101.20. The defendant at the request of the defendants. objected to this testimony,and the court refused And for this reason the judgment of the Cirto admit it.

cuit Court must be reversed. It has been repeatedly decided in cases of in

ORDER. surance, that the insured cannot recover for the

This cause came on to be heard on the tranloss of probable profits at the port of destination, and that the value of the goods at the script of the record from the Circuit

Court of place of shipment is the measure of compensa: holden in and for the County of Washington,

the United States for the District of Columbia, tion. There can be po good reason for establishing a different rule in cases of loss by col. and was argued by counsel; on consideration lision. It is the actual damage sustained by the by this court, that the judgment of the said

whereof, it is now here ordered and adjudged party at the time and place of the injury that Circuit Court in this cause be, and the same is is the measure of damages.

The third and last exception was taken to an hereby reversed with costs; and that this cause instruction given upon the prayer of the de. be, and the same is bereby remanded to the fendant, and also to the refusal of the court lo said Circuit Court, with directions to award a give a direction asked for by the plaintiffs. venire facias de novo. The defendant prayed the court to instruct the Cited-5 How., 500, 503; 6 How., 435; 13 How., 113 ; jury, that if they believed that the collision 14 How., 538; 7 Wall., 64, 70; 8 Wall, 21; 1 Cliff., 348 was occasioned by the breaking of the hawser 3 Biss., 27; 4 Biss., 72: Abb. Adm., 103, 104, 207; 2 and fish tackle, yet from those facts the jury 132; 6' McLean, 182; 5 'Blatchf., 494 ; 1 Brown, 180 were not warranted in inferring that the Tasso 183, 380, 381. at the time of her sailing was unseaworthy; which direction the court gave. And thereupon the plaintiff prayed the court to instruct *RICHARD B. ALEXANDER, Plaint-[*37 the jury, that if they believed the collision took

iff in Error, place as above stated, then such breaking of the hawser and tackle is no excuse for it on the

MOSES GRAHAM, Defendant in Error. part of the defendant; and this direction the court refused to give.

error to the Circuit Court of the United Now, these two prayers involve the same

, principles, and are both liable to the same ob- for the County of Washington. jections. By whose fault the accident hap- The plaintiff in error having filed an order in pened was a question of fact to be decided by writing, directing the clerk to dismiss this suit, the jury upon the whole evidence before them. it is thereupon now here considered, ordered And the error in the prayer on the part of the and adjudged by this court, that this writ of plaintiffs, as well as that offered by the defend error be, and the same is hereby dismissed with ant, consists in this, that it sought to withdraw costs. from the jury the decision of the fact, and asked the court to instruct them, as a matter of law, upon the sufficiency or insufficiency of LESSEE OF JOHN MERCER, AND MARY certain evidence offered to prove it; and both SCOTT MERCER, His Wife, Plaintiffs in prayers are still more objectionable because Error, each of them asks the instruction upon a part only of the testimony, leaving out of view WILLIAN CARY SELDEN, Defendant. various other portions of it which the jury were bound to consider in forming their ver. Ejectment— Virginin statute of limitations-addict. If the collision was the fault

of the pilot

verse possession-disabilities of infant and feme alone, then the owners of the Tasso are not

coverttenancy by courtesy must arise from 36*) answerable. But if it was altogether *or

actual seisin during coverture. in part caused by the misconduct, negligence, or unskillfulness of the master or mariners, the The statute of limitation of Virginia, passed in owner is liable. And if the equipments and 1785, barred the right of entry, unless suit was tackle were in this case insufficient, and not of action accrued. The savings are infancy, coveras strong and safe as those ordinarily used for ture, &c., and such persons are barred if they do such vessels in such cases, and thereby ren- pot bring their action within ten years next after dered the care and skill of the pilot unavailing, The circumstances under which the defendant it was undoubtedly the fault of the master held in this particular case, constitute an adverse or owner; and is equally inexcusable as the possession. omission to provide a competent crew. And it ceptions of the statute cannot be piled one upon

Disabilities which bring a person within the exwas for the jury upon the whole evidence to say whether it was the result of accident, aris

NOTE.-As to adverse possession, and requisites of, ing from strong wind and tide, against which see note to Ricard v. Williams, 7 Wheat., 59. ordinary skill and care could not have guarded; That mortgageor's possession is not adverse, see or the fault of the pilot; or the misconduct. to Higginson v. Mein, 4 Cranch, 115. negligence, or unskillfulness of the crew; or the session. See note to Ewing v. Bennett, 11 Pet., 41.

The occupancy necessary to constitute adverse posinsufficiency of the hawser, ropes, or equip- Tenancy by the curtesy, what seizin is necessary for, ments with which the vessel was furnished.

and in what lands.

Tenancy by the curtesy is an estate for life, creIn the two first instances the owner of the lated by the act of law. When a man marries a


another: but a party, claiming the benefit of a guardian, subject both at law and in equity to proviso, can only avall himself of the disability ex- all the duties and liabilities of such fiduciary The general rule of law is, that there must be an possessor, and utterly, incapable of converting entry during coverture, to enable the husband to his fiduciary possession into a disseisin or adclaim a tenancy by the courtesy.

verse possession. This case was brought up by a writ of error 5. Multo fortiore, when, as in this case, the THES

from the Circuit Court of the United States heirs were not only infants, but united in their for the Eastern District of Virginia.

persons all the relations of his step-children, of The facts in the case are stated in the com- co-heirs to his wife, and his wards; when the mencement of the opinion of the court, which guardian care and conservation of all their the reader is requested to turn to and peruse, rights of property and of possession had debefore referring to the sketch of the arguments volved, as a strict legal duty, on him, ex officio. of counsel

6. That the right of action had never accrued The decision of the court being made to rest when the infants had a right to sue, being entirely upon the statute of limitations, all restrained either by coverture or a tenancy by those branches of the argument relating to the the courtesy. 38*] *invalidity of the deed from Selden and On the part of the defendant, it was argued, wife to Dr. Mackay, on account of its having that none of the exceptions in the statute have been read to her, and of a defect in its acknowl- any application to this case, but those in favor of edgment, are omitted.

infants and femes covert. The right of entry Wr. Whipple and Mr. Walter Jones for the of Mrs. Mercer's mother, and of her uncle, plaintiffs.

John Page, accrued at the death of Mrs. Selden, ¥r. Chapman Johnson for defendant. in 1787;or, at the latest, accrued to *John [*39

On the part of the plaintiffs, it was argued: Page when he attained full age, prior to 1792, 1. That Mrs. Swann and her children were and to Mrs. Swann when she was married, in within the express exceptions of the statute; April, 1794. under the double disability of infancy and First, as to John Page. coverture.

His disability of infancy being removed, and 2. That no disseisin or adverse possession is the guardianship account being settled in 1792, operated by any length of continued possession, his right of entry, if any remained to him, cerhowever hostile may be the new pretense of tainly accrued as early as the 21st of Decemtitle under which possession is held over, if the ber, 1792, when he was under no disability, possession were not tortious at its inception, but and so he remained until his death in the year in subordination to or consistent with the true 1800. title.

The statute having begun to run against him 3. That this is especially true where a hus- in his lifetime, runs over all subsequent disband, who having rightfully come into posses- abilities. (Adams on Ejectment, 59; 2 Preston sion jure uporis, holds out possession against on Abstracts, 339; Blanchard on Limitations, ber heir after descent cast by her death; how- 19, in the first vol. of the Law Library, 10; ever hostile the claim and strong the color of Jackson, dem. Coiden, v. Moore, 13 Johns., 513; exclusive title asserted for himself; and though Jackson, dem. Livingston, v. Robbins, 15 Johns., the heir be sui juris, and in no nearer relation 169; Fitzhugh v. Anderson, 2 Hen. & Munf.. to husband and wife than simply as her heir-at- 306; Hudson v. Hudson's Adm., 6 Munf., 355; law.

Parson v. McCracken, 9 Leigh., 501, 507.) 4. That the intrusion, even of a mere stranger,

Second, as to Mrs. Swann. on lands descended to an infant, constitutes the Her right of entry accrued either when she intruder, ipso facto, a fiduciary possessor, quasi was an infant and unmarried at the death of her mother, or when she was both an infant and a witnesses, not upon the evidence of facts from married woman, in April, 1794. Her disability which other facts may be inferred, but upon a of infancy ceased a few months after her mar. special verdict finding all the facts, and leaving riage, and her disability of coverture ceased at to the decision of the court the naked question her death, in 1812. But so far as regards her of law, whether these facts constitute a possesdaughter, Mrs. Mercer, there has been a suces- sion which the statute of limitations will prosion of disabilities from the death of Mrs. Sel- tect. In Bradstreet v. Huntingdon (5 Peters. den to the present day.

woman, seized, at any time during the coverture, Lott, 3 Hill, 182; Pond v. Bergh, 10 Paige, 140, 154 ; of on estate of inheritance, in severalty, in copar Jackson v. Sellick, 8 Johns., 262; Clay v. White, i cenary. or in common, and hath issue by her born Munf., 162: Green v, Liter, 8 Cranch, 249; Davis v. alive, during the life of the mother, and which Mason, 1 Pet., 503; Smoot.v. Lecatt, 1 Stew. Ala., might by possibility inherit the same estate as heir 590; McConry v. King, 3 Humph. Tenn., 287. to the wife, and the wife dies in the lifetime of the The wife must have such seisin as will enable her busband, he holds the land during his life. 4 Kent's issue to inherit; and therefore, if she claims by Com. 27: Litt., sec. 35, 53; Co. Litt., 29, b.; Paine's descent or devise, and dies before entry, the inherCase, 8 Co., 34; Barker v. Barker, 2 Sim., 249; 2 itance will go, not to her beir, but the heir of the Black, Com., 128; Marsellis v. Thalimer, 2 Paige, 35, person last seized, and the husband will not have

Four things are requisite toan estate by the curte- his curtesy. Jackson v. Johnson, 5 Cow., 74; Adair sy, viz., marriage, actual seizin of the wife, issue, and v. Lott, 3 Hill, 182; 4 Kent's Com., 30. death of the wife. The law vests the estate in the It is sufficient for the claim of curtesy that the husband immediately on the death of the wife, wife had title to the land, though she was not actuwithout entry. His estate is initiate on issue bad, ally seized, nor deemed to be so. Bush v. Bradley, and consummate on the death of the wife. 2 Kent's 4 Day, 298; Kline v. Beebe, 6 Conn., 495 ; DeGrey v. Cod., 28.

Richardson, 3 Atk., 469; Sterling v. Penlington, 7 The wife according to the English law, must have Viner, 149, pl. 11; Ellsworth v. Cook, 8 Paige, 643. been seized in fact, and in deed, and not merely of The husband is tenant by the cartesy if the wife a seisin in law of an estate of inheritance, to entitle has ar equitable estate of inheritance, notwiththe husband to his curtesy. Co. Litt., 29, a.; Tayloe standing the rents and profits are to be paid to her F. Gould, 10 Barb. N. Y., 388; 4 Kent's Com., 29; 5 separate use during the coverture. So where she Cow. 74, 88; 13 Jobns., 260; 16 Jobns., 96; 3 Atk., has a seizin in equity as a cestui que trust. Watts v. 412; Cruise Dig., ch.2, sec. 12-16

; 23 Pick.180; 7 Mass., Ball, 1 P. Wms., 108; 1 Sumn., 128 ; Bennett v. Davis, 53; & N. H., 240; 5 N. H., 469, 1 Barb., 505; 1 Paige, 2 P. Wms., 316; Cochran v. O'Hern, 5 Watts., 113; 634; 5 Paige, 161, 1 Barb. Ch., 598.

Vrooman v. Shepherd, 14 Barb., 441. See Moore v. The circumstances of this country have justly re- Webster, 3 L. R. Eq., 267; 35 L. J. Chanc., 549; 15 L. qaired some qualification of the strict letter of the J. N.S., 460. rule relative to a seisin in fact by the wife; and if But the husband of a mortgagee in fee is not enshe be owner of waste uncultivated lands, not held titled to his curtesy, though the esta becomes adversely, she is deemed seized in fact, so as to en- absolute at law, unless there has been a foreclosetitle her husband to his right of curtesy. Adair v. I ure, or unless the mortgage has subsisted so long a

402), it is said, “ Adverse possession is a legal Can these disabilities be united so as to con- idea, admits of a legal definition, and is theretinue her protection?

fore a question of law." The authorities relied upon to maintain the Taylor, dem. Atkins, v. Horde (1 Burrow, 60). power of tacking disabilities, are Blanchard was upon a special verdict finding the facts, on Lim., 19, 20, in Law Library, 10, 11; 2 and referring the law to the court; and in that Preston on Abstracts, 349; Cotterell v. Dutton, case it being ascertained that the plaintiff's (4 Taunton, 826). But even Blanchard's opin- right of action had accrued more than twenty ion is, that successive disabilities in different years before the bringing of the suit, he was persons cannot be connected; and Preston regarded as having the onus thrown upon him states that the later decisions are, that suc. of showing why he had not sooner entered. cessive disabilities cannot be united (2 vol., This case is reported also in Cowper, 689, and p. 341); and the following authorities prove 6 Brown's P. C., 633; it is also stated in 3 ihat they cannot: Adams on Ejectment, 60: Cruise's Dig., title 31, ch. 2 and 33. 6 East, 80; approved in Tolson v. Kaye (3 In this case (Taylor v. Horde), the verdict Broderip & Bingham,223), decided in Common did not find that the possession was adversary; Pleas, in 1822; Eager and wife_ v. Common but it found the facts upon which the court wealth (4 Mass., 182), Griswold v. Butler (3 Conn. pronounced that the plaintiff's title was barred Rep., 227). Floyd v. Johnson (2 Littel, 114), by the statute. The case seems to have been Clay's Heirs v. Miller (3 Monroe, 148), Thomp. briefly this. There was tenant in tail with son v. Smith (7 Serg: & Rawle, 209), Demarest power to make leases for lives, and with remain40*] et *ux. v. Winkoop (3 Johnson's Ch. der in tail to the right heirs of the grantor. The Rep., 129), Jackson v. Wheat (18 Johns., 40), tenant in tail made leases for three lives, and Jackson v. Johnson (5 Cowen, 74), Bradstreet v. afterwards suffered a common recovery with a Clarke (12 Wendelì, 602), Doe, dem. Lewis, v. view of barring the entail, and cutting off the Barksdale (2 Brock., 436), Parsons v. McCracken remainders limited thereupon.

The person (9 Leigh, 495). In the last case Judge Parker entitled to the remainder *in fee ied, (*41 cites the case of Swann v. Selden, as authority for having devised it to the lessor of the plaintiff. the same proposition, it having been recognized The tenant in tail afterwards died in the year by Judges Cabell and Brockenborough. 1711 without issue, and his heir, claiming un

If the plaintiffs are not within the exceptions der the common recovery, entered, and he and to the statute, then the question is, whether, those claiming under him continued to hold the supposing them to be under no disability, they land till the vear 1753. The survivor of the three are within the principle of the statute; or, in lessees for life died in 1752, and then the devisee other words, has there been an actual adversary of the remainderman in fee entered and made possession in the defendant, and those under the lease on which the action was brought. The whom he claims, for fifteen years before bring. defendants defended themselves upon two ing this suit?

grounds: 1st. That the common recovery had Here it must be remembered that we are try- barred the remainder in fee; and 2d. That if ing this question, not upon the testimony of it had not, the statute of limitations had barred


time as to create a bar to the redemption. Chaplin tenancy by curtesy. 7 Wheat., 27; Buckley v. Buckv. Chaplin, 7 Viner, 156, pl. 23; 2 Ves., Jun., 433; 4 ley, 11 Barb., 43, 65. Kent's Com., 32.

And no entry on wild lands is necessary. Davis Though the wife's dower be lost by her adultery, v. Mason, 1 Pet., 503; Barr v. Galloway, 1 McLean, no such misconduct on the part of the husband 476. will work a forfeiture of his curtesy; nor will any A right of entry sufficient, where no adverse pos. forfeiture of estate by the wife defeat the cur- session exists. Davis v. Mason, 1 Pet., 503. tesy. Buckworth v. Thrikell, 3 Bos. & Pull., 652, A husband has curtesy of trust, as well as note; Butler's note 170 to Co. Litt., 241, a ; Roper legal estates ; of equity of redemption of a conon Husb. and wife, 36, 37; 3 Preston on Abst. of Title, tingent use, or of money to be laid out in land. 384, 385; Park on Dower, 172, 186; 4 Kent's Com., 34. Gilb, Uses and Trusts, 2 Vern., 536; 1 P. W.,

When the estate by the curtesy is once vested in 1 Atk., 606; Robison v. Codman, 1 Sumn., 121 the husband, it becomes liable to his debts, and can- Duuscombe v. Dunscombe, 1 Jobns. Ch., 508 ; % not be devested by his disclaimer. Watson v. Wat-Cow., 439; Stoddard v. Gibbs, 1 Sumn., 263 ; Sweetson, 13 Conn., 82.

apple v. Bindon, 2 Term, 536; Watts v. Ball, 1 P. The creditors have a right to sell the same on ex- Wms., 108 ; Chaplin v. Chaplin, 3 P. Wms., 229; Cashecution at law. Lessee of Canby v. Porter, 12 Ohio, borne v. Scarf, 1 Atk., 693; Cunningham v. Moody, 79.

1 Ves., 174; Dodson v. Hay, 3 Bro. C. C., 404. A voluntary settlement of that curtesy upon the The husband is tenant by the curtesy of a vested wife by the husband, is void as to his creditors. remainder in fee. Young v. Langbein, 7 Hun. N. Vanduzer v. Vanduzer, 6 Paige, 366; Wickes v. Y., 151. Clarke, 8 Paige, 161.

In order to give the husband a right of curtesy, A coinnon law seizin in fact was necessary, dur- the wife must be seized in fact of the premises. ing the life of the wife, to enable the husband to Gibbs v. Esty, 22 Hun. N. Y., 266. claim as tenant by the curtesy. Barr v. Galloway, Actual seisin, or, at least, a right of possession, 1 McLean, 476.

in the wife during coverture, is in general necesa In general, there must be an entry on the land of sary to support a tenancy by the curtesy. Ferguthe wife by the husband, to enable him to claim as son v. Tweedy, 43 N. Y., 543. tenant by curtesy. Mercer v. Seldon, 17 Pet., 61, In New York, tenancy by the curtesy is not afand supra.

fected by the enabling act, in reference to married An actual entry, pedis possessio, by the husband or women, passed in 1848, or amendments thereto, of wife, during coverture, is not necessary to create a 1849. Zimmerman v. Schoenfeldt, 3 Hun., N. Y., 642.

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