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purchaser vested in the landlord, in satisfaction of the rent, and never was the money of the under-tenant (a).

An under-lease of the whole term amounts to an assignment lb).

But if the lessor reserves the rent to himself on granting over, it is an under-lease and not an assignment, though he parts with the whole term (c)

An outgoing tenant having agreed to assign the remainder of his term to the incoming tenant, the sheriff, before an actual assignment made, may, under an execution against the outgoing tenant, sell his interest in such remaining term, and set upon it the same value the incoming tenant had agreed to give for it (d).

(a) Moore v. Pyrke. II East. J». I (c) Poultney v. Holmes, I Str. 404.

(i; Hicks v. Downing. I Ld. Raym. 99 | (J) Sparrow v. Earl of Bristol. I Marl. IC.

CHAPTER XII.

Of Changes happening by Marriage, Bankruptcy, Insolvency, or Death: wherein of Assignees, Devisees, Executors, and Administrators, and in what Cases they are bound by, and may take advantage of Covenants.

{CHANGES by Marriage.—The marriage is a gift in law to the husband of all the wife's chattels real, as a term for years in right of his wife; so of estates by statute-merchant, statute-staple, elegant, &c. and of these he may alone dispose, or forfeit, or they may be extended for his debts (a).

But if he makes no disposition of them in his lifetime, they survive to his wife, and therefore he cannot devise them. For the husband is only possessed of a term in her right; and the term or legal interest continues in her (a): for the law does not love that rights should be destroyed; but, on the contrary, for the supporting of them invents notions and fictions, as abeyance, &c. (b).

So a feme covert is of capacity to purchase of others without the consent of her husband, and though he may disagree and divest the estate, yet if he neither agree nor disagree, the purchase is good (c).

If a woman, lessee for years, marry, and the husband afterwards purchases a new lease to them both for their lives of the same lands, this is a surrender in law of the first term, and shall bind the wife; because it amounts to an actual disposition thereof, which the husband had power to make (a).

(a) Bac. Abr. tit. Baron et Feme. (C. 2.) 1 Lit. 34*.

(J) Cage v. Acton 1 Ld. Raym. 515. Co. | (c) Ibid. 3. a. 3j6. b.

So, if a man marry a woman who is cestuique trust of a term, the husband may as well dispose of this trust as if the legal interest were in her. But not if the trust were created with his privity and consent (a).

Even when the husband was possessed of a term in right of his wife from whom he was divorced h mensd isf thoro s he was restrained from selling it (J).

But such term, whereof the husband is possessed in right of his wife, may be extended for the debts, or forfeited for the crimes of the husband; for these are legal dispositions thereof, which shall bind the wife (r).

But if a husband should grant a rent, common, &c. out of such term and die, this would not bind the wife surviving, because the term or possession itself being left to come entire to the wife, all intermediate charges or grants thereout by the husband determine with his death; for the title of the wife to such term has relation to the time of their intermarriage, and so is paramount to all collateral charges or grants made thereout by the husband after.

So, a grant by the husband of the herbage or vesture of such land which he held in right of his wife for years, will be void after his death; because they are part of the land itself, and not collateral to it [c).

If the husband and wife be evicted of a term which he hath in right of his wife, and the husband bring an ejectment in his own name, and have judgment to recover, this makes an alteration in the term and vests it in the husband; because, not making his wife a party to the recovery, he takes the whole wrong to be done to himself, and consequently if he recover, it must be by virtue of that right whereof he was disseised.

An estate by the curtesy is subject to the charges of the wife: so that if a woman, tenant in-tail, acknowledge a statute and afterwards marry, have issue, and die, the lands may be extended in the hands of the husband holding as tenant by the curtesy (d). So, where a husband is but tenant by the curtesy, and has only an interest for life in the wife's estate, he cannot affect that estate without her joining (a).

Husband and wife make a lease for years by indenture of the wife's lands reserving rent; the lessee enters; the husband before any day of payment dies, the wife takes a second husband, and he at the day accepts the rent and dies: it was holden, that the wife could not now avoid the lease, for by her second marriage she transferred her power of avoiding it to her husband, and his acceptance of the rent binds

(a) Turner's Case. I Vern. 7. Pitt v. Hunt. I (I) Anon. 10. Mod. 44.

Ibid. 18. Incledon v. Northcote. 3 Atk. 430- I (c) Bac. Abr. tit. Baron Ic Feme. (C. a.)

435. I W Dyer- 3*«b- **

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her, as her own before such marriage would have done: for he, by the marriage, succeeded into the power and place of his wife, and what she might have done, either as to affirming or avoiding such lease before marriage, the same may the husband do after the marriage (a).

As the wife's acceptance of rent or fealty, &c. will make good and unavoidable leases for years, made by her and her husband at common law, or by her husband solely, if they be by indenture or deed-poll; so, if the wife die before her husband, the same election and power of affirming or avoiding such leases descends to her issue or heir: for such leases are good, till those who succeed to the estate defeat and avoid them by their disagreement thereto (a).

Therefore where a woman tenant in-tail, having issue by a former husband, after his death married a second husband, and they by indenture joined in a lease for years of the wife's lands, rendering rent, and then the wife died without issue by the second husband, so that he was not entitled to be tenant by the curtesy, it was holden, that till the issue by the first husband entered, this lease remained good (a).

So, where a man seised of land in right of his wife, makes a lease for years, rendering rent, and then his wife dies without issue by him, whereby he is not tenant by the curtesy, but his estates determined; yet he may avow for the rent till the heir hath made his actual entry, because the lease was at first good, and drawn out of the seisin of the wife; and therefore, till the entry of the heir, remains good between the lessor and the lessee, so that the lessee may maintain an action of covenant, and the lessor distrain and avow for the rent, till the heir hath entered (a).

If a term of years be granted to a feme covert and another, or if a feme sole and another be joint tenants of a term of years and the feme take husband, yet in both cases the joint-tenancy still continues, for the marriage makes no severance or alteration of it, but gives the husband the same power his wife had before, by an actual disposition of her moiety to break the joint-tenancy, and binds his wife's interest therein; but without such disposition, the joint-tenancy continues, and if the husband die, the whole shall go accordingly (a).

So, if such joint-tenants be ousted of the term, the wife shall join with the husband and the other joint-tenant in ejectment, and the wife shall have judgment to recover as well as the husband : and if in such case before any actual disposition made by the husband, his wife die, the whole term shall go to the surviving joint-tenant and no part thereof to the husband: because, though the husband, if he survive, is by law to have all chattels real and personal of his wife's, and this

(a) Bac. Abr, tit. Baron & Feme. (I.)

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term was a chattel real, yet the title of the other joint-tenant to have the whole by survivorship, coming at the same instant and being the elder title, shall prevail against the husband (a).

Although by the marriage, the husband and wife become one person in law, and therefore such an union works an extinguishment or revocation of several acts done by her before the marriage, yet in things which would be manifestly to the prejudice of both husband and wife, the law does not make her acts void (b).

Therefore, if a feme sole make a lease at will, or is lessee at will, and afterwards marry, the marriage is no determination of her will, so as to make the lease void: nor can she herself without the consent of her husband determine the lease in either case (b).

The husband as head or governor of the family, has an absolute power over the chattels real and personal of which he is possessed in right of his wife, to dispose of them as he thinks proper, and no act or concurrence of her's is of any avail, either in confirming or controuling such disposition (a).

Therefore, if an express condition (as to pay rent) be annexed to the estate of a woman, who takes husband, the laches of the husband to perform the condition, loses the estate for ever (c).

But the laches of the husband to perform a condition in law, which does not require skill or confidence, (as not to alien in fee) does not prejudice his wife (a1.)

The real estate, however, of the feme is under a different regulation from that by which her chattels real and personal are governed, for it is under the power of the husband no longer than during the coverture, and therefore any disposition of it made by him alone may be defeated; also, all charges laid on it by him, fall off with his death (a).

But the husband during coverture may take the rents and profits of the whole estate of his wife: and as he has the sole disposition of all interests of his wife, he may, for an interest which vests in the wife, or accrues to her during coverture, either sue alone, or with his wife (e).

If a feme sole have right to have common for life, and she take husband, and he be hindered in taking the common, he may have an action alone without his wife, it being only to recover damages (f).

But if baron and feme be disseised of the land of the feme, they must join in an action for the recovery of the land (_/").

If A. demise a house to B. for years, and B. covenant to repair the said house during the term, and afterwards A. grant the reversion to baron and feme, fyc. the baron may have an action alone upon this covenant (/).

(a) Bac. Abr. tit. Baron and Feme. (I.)
H>) Ibid. (E.)
(r) Co. Lit. 446. b.

(J) Ibid. 233. b.

(f) Com. Dig. tit. Baron and Feme. (O.)

(f) Bac. Abr. tit. Baron and Feme.

But if lands be conveyed with a covenant for further assurance to husband and wife, she must be joined with him in an action for the breach of such covenant (a).

In those cases where the debt or cause of action will survive to the wife, the husband and wife are regularly to join in the action: as in recovering debts due to the wife before marriage, in actions relating to her freehold or inheritance, or injuries done to her person (b).

In other cases, as in actions for a profit accrued during the coverture to the husband in right of his wife, in which the husband may sue alone or join with his wife, it is the more sure mode to join (c).

If there be a lease by the wife dum sola, payment of the rent ought to be to the husband; and payment to the wife without the husband's order, though there be no notice of the marriage, shall not discharge the lessee (d). [For other matter relative to this subject see ante C III. s.i2]

Of Dower.—A woman is entitled to dower of a reversion expectant on a term for years. Thus if a man, either before or after marriage, make a lease for years reserving rent, his wife will be entitled to a third of the land for her dowry, and also to a third of the rent, as incident to the reversion (e).

The widow holds her dower discharged from all judgments, leases, mortgages, or other incumbrances, made or created by her husband after the marriage (f).

Dower is even protected from distress for a debt due to the crown, contracted during the marriage ; and if the lands be distrained upon, the doweress may have a writ to the sheriff commanding him not to distrain, or to restore the distress, if any be taken (g).

A rent issuing out of land whereof a woman is dowable may be assigned in lieu of dower; and if a tenant in tail assign a rent out of the land intailed to a woman entitled to dower out of such estate tail, not exceeding the yearly value of her dower, it will bind the issue (h).

But rent assigned in lieu of dower, as it comes in lieu of land, ought to be absolute as the assignment of the land itself (i).

A jointress is not so favoured in law as a doweress. But the Court of Chancery will set aside a term of years in favour of a jointress, though it will not do so in favour of a woman entitled at law to dower; because a jointress has a fixed interest by the agreement of the party (i).

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