#### Simon Gentry *v.*Christopher Wagstaff *et al.*

The husband acquires by .marriage no estate in the land of his wife, of which he is not actually seised. And where the wife has a vested remainder in lands, a sale, in the lifetime of the particular-tenant, of the husband’s interest passes nothing- to the-purchaser.

This was a petition for partition. The demandant averred, that *John Baird*being seised of the land of which *271partition was sought, devised them to *John ICerr*and his wife *Margaret,*for their joint lives, with remainder to the issue of the wife — that the wife died leaving several children, and among them *Margaret,*the wife of the de-fondant *Wagstaff*— and that the demandant had purchased the interest of *Wagstaff*at an execution sale.

The defendants pleaded, that at the sale of the inter-est of *Wagstaff*in the land, *John*Kerr, the tenant for life, was alive — and the demandant demurred.

His Honor, Judge Norwood, at Person, on the last circuit, overruled the demurrer, and dismissed the petition, whereupon the demandant appealed.

P. *II. Mangum,*for the demandant.

The judgment of the court in this case, depends *solely*upon the question, whether *any interest*passed to the petitioner, by virtue of the sheriff’s sale under the execution, set forth in the petition and admitted by the plea.

No analogies from the English decisions can be expected in this case *;*because in England, land could not be sold as in this state, under a *fieri facias.*Nor is this caso analogous to an execution sale of personal property ; because, to render a sale of personal property by virtue of an execution *valid,*the chattel to be sold must be either in the actual or potential possession of the officer, so as to enable him to give possession of it to the purchaser ; and so as to enable the bidders present, by inspection of the property, to judge of its probable value, and thereby prevent an injurious sacrifice in the sale of it. Not so, in the case of the sale of *land*by execution; for among other reasons, it may suffice to say, that *land*being immovable cannot be delivered to the purchaser fay *manumission;*and it being subject at all times previous to the sale, to the observation of such as may wish to purchase it, a public sale of it as the law prescribes, will not *probably*produce a sacrifice, in the value of it, or afford facilities to the commission- of fraud upon those who may be interested in its selling for a good price. But it is contended, that this cause depends upon the true construction of the British statute of the 5th of *George 2d e. 7,*and upon the interest which a husband acquires in hid *272-wife’s real estate by their intermarriage. What is the proper construction of the statute of George-2d. ? It is ****• contended, that by virtue of that.statute, every descrip-^on 0|- *[egfli interest;*which a debtor may have in or to land, is subject to be sold under execution. Some *equitable interests*have been rendered subject to sale by execution, by the General Assembly. But they do not affect this case. If the construction of the statute of *George*■2d I contend ibr, be correct, it will not be necessary to Call in any other aid, so far as this part of the case is concerned, than what that statute affords. The position then which I assume, is, that *any legal interest whatever,*which a debtor may have in and to land in -this state, is liable to be sold under and by virtue of a *fieri facias.*

The next inquiry is, what interest did *Christopher Wag-staff*acquire by his intermarriage with a daughter of *Margaret Kerr,*in the land devised by *Baird, to John Kerr*and his wife during- their joint lives and the life of the survivor, with remainder in fee to their children ? The interest which the wife of *fVagslaff*had in the land devised *in the life- time*of her mother, was, according to all the.authorities, *a vested remainder in fee in*an undivided part. What sort of *an interest*is a-vested remainder in fee ? Is it a legal, or an equitable interest ? I apprehend it is clearly *a legal interest.*It is one that is recognized, and has ever been recognized by courts of law. Was this interest *a freehold interest,*as well as a legal interest ? It is called *a freehold remainder.*( 2 *BL Com.*166). The interest then which *Mrs. ■ Wagstaff*had in the land devised *in the life-time*of her mother, may be deno..minated *afreehold, legal interest*— for every *fee simple*is • *a, freehold*estate, whether it he in possesssion or remainder. *Margaret Kerr,*clothed with this freehold, legal interest, intermarries with *Christopher Wagstaff'.*Does not *Wugsttiff*acquire *some*estate or interest in this land, by his marriage *“ ipso facto'’ ?*If be acquires any interest, it must partake of the character of his wife’s estate therein. *That*was a *legal*interest; and if he has *any*by virtue of bis marriage, the interest thus acquired must also be a *legal*interest. For I am yet to learn that *273ill *any possible case,*the husband can acquire in his wife’s éstate, by virtue of his marriage, rights of a different character from those of his wife in the same estate at the time of marriage, safar as regardsthe distinction between lc-gal and equitable interests. The question recurs — did *Wagstaff*acquire *any interest*in this land by virtue of his ■ marriage ? If he did not. I will venture to assert, that this case constitutes an *anomaly*in the law, unsupported by authority and contradicted by legal analogy. I grant,, the estate which *Wagstaff*acquired *was not*a “ tenancy by the curtesy.” Why? Because among others, to constitute such an estate, *two things*are essential which are-wanting in this case, viz : a *seisin in deed*of the land-.on the part of the wife, and *the subsequent birth of living issue.*Neither of these facts are, in this case, pretended. The wife of *Wagstaff,*at the time of her marriage, was-not *seised in deed*of the land ; because *one*of two life-estates created by the will of *John Baird,*had still to *fall;*and the surviving tenant for life had the actual-possession in deed. But at the time of her marriage, she had a *seisin in law*of a *vested remainder in fee,*which is not. a bare right or possibility, but a *substantive*estate, upon-which a release will operate. (Co. *Litt. 267,*a.) And this-, I contend, was a sufficient *seisin,*within the meaning of the authorities and according to the reason of the-law, to confer on her husband an estate in right of his wife, by virtue of his marriage *“ ipso facto.”*Suppose-that in this case, *Margaret Kerr*had been *seised in deed-*of an undivided child’s part in this land, at the time oilier marriage — or in other words, suppose that:her mother as well as her father liad died previously to her marriage. What estate would her husband *then*have acquired by the marriage “ *ipso facto”?*It would not have been “ a tenancy by the curtesy” but.it would have been a *freehold*estate — an. estate of as high dignity in legal estimation as that by ‘ ‘ the curtesy.” It would have been *& freehold estate in right of his wife,*that would have continued as long as *the*coverture-as. long *as their joint lives.*It would *necessarily*have had that duration, and may have continued *longer*by the subsequent birth of a *274Jiving child in the life-time of the wife. (Co. *Lilt.*2 *vol.*351 a, and *Reeve’s Dom. Rel.*under *rights of husband in wife’s real*estate, and references). I have supposed the case 0f a *seisin in deed*on the part of the wife ; hut I argue that *such*“ a seisin” is not necessary to confer on the husband *snch an estate in right of his wife as I have' de*scribed, although it is necessary to constitute “ a tenancy by the curtesy.” Why ? Because in the first place, the authorities are silent on the subject of a *seisin in deed,*when treating of the estate the husband gains in the wife’s land by *the fact*of the marriage. They speak of *“*a sei-sin” *only*on the part. of the *wife;*which is a term of art and is *civil*or natural, or *in law*or *deed, (Co. Litt.*200, b.); whereas, oil the other hand, when treating of a tenant by “the curtesy,” they *expressly*state that a *seisin in deed,*in contradistinction to a *sei-sin in lazv,*is necessary to constitute it. And secondly, “a seisin in deed,” in such a case, is not necessary, because the policy of the law does not require it; but on the contrary,the policy of the lav/ is otherwise. Why does the law require “ a seisin in deed” on the part of the wife, as *one thing essential*in constituting *“*a tenancy by the curtesy” ? If there be any reason for it, I apprehend it is, to stimulate the husband to an industrious improvement of his wife’s real estate, and thereby add to the physical strength of the country by increasing its wealth *;*which could not be done unless he possessed himself of her real estate. “ A tenancy by the curtesy” is a *preferable*estate to that acquired by *the fact*of the marriage — although it is not one of a higher dignity, both being *freeholds;*and hence the law supposed, that by bestowing on the husband this additional boon *conditionally,*its policy in this respect would more certainly he promoted. No such reason applies to the estate which the husband gains in his wife’s lands by *the fact*of her marriage *;*nor can any *adequate*reason be assigned for requiring in such a case, “ a seisin in deed.” The policy of the law does not require it. Why ? By the law of the country, a man, by marrying, becomes responsible immediately to pay all the debts of his wife, without refer-*275dice to the amount of the estate w hicli she may bring to him. This stern, inflexible rule of law would frequently expose the husband to great inconvenience and loss, if the law did not at the same time, throw around him the panoply of its protection, by giving to him *an available*interest in all his wife’s property. This, I contend, it. does.

To apply this supposed policy of the law', which is certainly sound, to this case, and what will be the result ? *Christopher Wagstajf marries Margaret Kerr,*who is seised of a vested remainder in fee in an undivided part of a tract of land ; he, by *the fact*of marriage, is bound to pay her debts ; and the law, to enable him to do so, gives to him at the same time, an interest in this vested remainder which will *necessarily*continue during the coverture, and may *possibly*continue *longer.*This interest must be *available;*otherwise, it would be nugatory. Again, it will not be denied, I presume, and and no authority need be cited to prove the truth of the position, that if *Wagstajf,*after his intermarriage with his wife and before the death of the tenant for life, had executed a deed of bargain and sale for a valuable consideration, purporting to convey all his interest, in right of Ms wife, in her vested remainder in fee in an undivided part of the land devised ; he, *Wugsiaff*and wife, after the death of the tenant for life, could not have recovered possession of the land, againsthis grantee. Why? It matters not, whether it be because lie had previously-conveyed his interest in right of his wife, by the deed of bargain and sale, or because ho would be *estopped*by his deed, purporting to convey. Either ivould be sufficient to bar his recovery. And the same consequences, I contend, would ensue from the sale of his interest under an execution, as stated in the petition. The judgment and execution, under which the sale was had, and the sheriff’s deed, *at the very least,*would *estop*him from denying the title of the plaintiff in this cause to the premises in question *;*and that too, whether *Wagstajf*and wife were either plaintiffs or defendants. The plaintiff, by force of his purchase at the execution sale, set forth in the peti*276tion, is placed in the shoes of *Wagslnff*to every intent and inuTio.se, to the extent of the present claim ; and neither 1 *TFagsfaff*and wife, nor the other defendants, cansueccss-fully resist tSiis petition. And this is true in this case, whether the execution sale actually conveyed to'the plaintiff the estate, as it is contended it did, or whether the judgment, execution and sheriff’s deed operate on *Wag-staff má*wife by estoppel *only.*For the plea is a joint plea, and is good as to all, orbadastoall the defendants.

*W. 1. Graham,*for the defendants,

argued that the wife must he actually seised, and not merely in law, to entitle the husband to his curtesy *;*and that *seisin*denoted the completion of that investiture, by which the tenant ivas admitted into the estate, and without which a freehold could not ho constituted *;*and he cited, *Taylor*v. *Haode,*(1 *Bur.*107.j 2 *Bl. Com.*127. 2 *Kent’s*Com. 110. 4 *Id..*29. *Presión on estates.*215. 2 *Bacon’s M.*224. *Thomas Co. Lit. 646,*and 672. *Be Gveyv.'Jiichardsov,(§MkAQ9.'}*

HeNdersoN, Chief-Justice

When this case was-opened, my impression was, that as the interest of the-wife was a vested remainder in lee,- after an estate for life in lier parents, and was therefore incapable of a sei-sin either in deed or in law, the law cast an estate on the husband during the marriage, which he could himself aliene, and which could consequently he sold for ids debts. I was letl to this conclusion from cases, which I then thought analogous *;*to-wit, where the estate was incapable of an actual seisin, as in cases of advowsons, rents and other incorporeal hereditaments ; that the law gave them to the husband diming the marriage, and upon the death of the wife, having had issue born alive, he bc-came tenant by the curtesy thereof; and that upon the death of the wife, her heir succeeded to her estate or interest therein, without an actual seisin by- her. But upon reflection I am satisfied that all these analogies fail. That as regards the freehold interest of the wife,, the husband by the marriage alone can acquire no estate- or interest; and that there must he an actual seisin of the husband, during the marriage, of such estates as ad---*277mit of it; as in lands and other corporeal hereditaments; and in both corporeal and incorporeal estates a *present*interest. I confine myself to freehold interests. This rule is founded, I think, on feudal-reasons ; and although the doctrine of feuds lias in a great measure been abolished,still many of the rules growing out of it remain, and govern our real estates, and this among others. The reason, why in freehold interests there must be a present estate in the wife to give the husband an interest,arises from the principle of the feudal law, that it is the freeholder only, who is bound to perform the feudal duties ; and that as the functions of the government could not otherwise be carried on, (as the -feudatory was concerned in the making and administration of the laws, as well as the defence of the kingdom,) there must in every feud be a freeholder. For if one feud could bo withdrawn from the obligations by law imposed on it, all might; and thereby the functions of the government would entirely cease. Hence the rule, that the freehold could not be in abeyance, or in no one; and hence grew the rule, that a contingent freehold remainder must be preceded by a particular freehold estate. But no such rule prevailed with the residue of the inheritance. It might be in abeyance,. in uncertainty, or as is expressed by some, *in nubibus.*All that was required was, that there should always be a freeholder to occupy the land, ami answer for its duties. Where there was one, the ulterior limitations might be to uncertain persons, provided the uncertainty was removed before or at the time the person was wanted to fill the freehold. Hence the rule, that the contingent event, on which the remainder is to vest, .must happen, or the contingent remainder man must he *in esse*during the particular estate, or *eo instanti*that it determines, that there may he no chasm. A child in *ventre sa mere*would not at common law fill the freehold, and make the contingent remainder good. Hence the law is entirely regardless of looking out the remainder man, until he is wanted to fill the freehold, and will not before that time decide on the person to take. As where there is an estate to A for life, remainder to B and his heirs; B dies living A; the *278heir of B is not looked for until the death of A. For until that time he is not wanted to fill the freehold ; altho’ B had a vested interest, and he who is the heir of B at A’s death, and not he who is heir at B’s death, succeeds to the estate. We had a remarkable application of this rule some years ago, in the late Supreme Court, in the case of *Exum*v. *Davie.*(1 *Murph, 375.)*An estate was limited to *Harwood Jones*for life, remainder to *John Jones*and his heirs. *John Jones*died before 1795, (when the act passed calling the females equally with the males to the inheritance,) leaving a son and a daughter. The son was then his heir, to-wit, at his death. After 1795,. *JIarwood Jones,*the tenant for life, died ; at which time both the son and daughter were the heirs of *John Jones ;*and they both succeeded equally to the estate. It was said to be quite immaterial who were'the heirs of *John*Jones, as to these lands, when *John Jones*died. For there was a freeholder in the person of the-particular tenant; and the law looked for the heirs, only when they wore wanted to succeed to the freehold interest, which was on the death of the tenant for life. In the case before the court,- the law docs not look for the children of the tenants for life, until the estate of the tenants for life determines. For they were wanted for no purpose, and as the husband had no duties to perform in regard to the lands, the law gave him no interest or estate therein. I have confined myself entirely to freehold interests. As to chattel interests in lands, as terms for years, the doctrine of feuds does not apply, as they were unknown to the feudal law.

A sheriff can sell only such estates as the defendant in the execution can convey by deed passing an estate. “Where the deed of the defendant would operate only by way of estoppel, a sheriff’s deed conveys nothing

As to the argument, that the husband could have sold these lands by estoppel, so he might sell any other lands in the same way; but the sheriff can only sell what the defendant himself can sell, where his conveyance operates by way of passing or transferring an estate ; not Where it operates by way of estoppel. If it included sales operating by the latter mode, the sheriff might sell any tract of land, or all the lands in his county.

I have entered more at large into this case, from what fell from me, when it was opened. The authorities cited *279and relied on by the defendant prove that there must be a present interest and a seisin of corporeal hereditaments. *(Taylor*v. *Hoode,*1 *Bur. 107. Tho. Co.*672, 532. 2 *Bl. Com.*127. 2 *Bac. Ab. Curtesy, C.*2, 3. *Preston on Estates,*215.) It may therefore be said as universally true, that by the marriage the husband acquires no interest in the corporeal real estates of the wife until actual seisin; and therefore can have no interest in her real estates in inversion or remainder, dependant on or after a preceding freehold estate therein in another, until the determination of that estate, and a seisin in him.

Per Curiam.' — Judgment affirmed.