Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-12

one-thirl undivided interest in the land
therein described which decended TO
and belonged to complainant.
But a more difficult and important
question is presented in the second prop
osition, which we viii proceed TO notice.
! This proposition, as already stated, SE
! II q tenant, by the courtesy, sell and
/ convey the lands of his wife in fee and
sfterward she obtain divorce from the
bonds of matrimony, does this divorce
terminate the estate OF the tenant by
the courtesy in his vendee?
An estate by the courtesy OF England O
is purely the creature OF the law, anu
arises where man marries woman
seized of an estate OF inheritance @
| in fee simple or fee tail, and has by her
/ issue born alive, which was capable Of
| inheriting her estate. In this case, says
BLACKSTONE. he shall, on the death OF his
wife. hold the lands for life as tenant by
! the courtesy. ? Blackstone l26.
In order TO complete the title by cour-
| tesv. the presence Of four circumstances
! Is necessary, viz: Marriage, seizin Of
the wife. issue, and death of the WIFE
! The marriage must be lawful and valid
/ i'm law where it is UOid the husband
! does not acquire a right 10 be tenant by
the courtesy yet if it is only voidable,
and is not avoided during the life of the
wife the husband viii be tenant by the
courtesy. for Ho marriage will be an
nulIed after the death Of either party.
! Shelford on marriage and divorce, 4Is-e.
| The seizin Of the wife at the common
/ law must be an actual selZln or posses
sion, but in more modern times DOTH IN
] this country and England, the rigOr OF
! the common law rule has been generally
/ released and in this state il is well set
| tied. that a seizin in law or constructive
seizin of wild or other lands is sufficient
/ to create title by courtesy. McCoTrey
/ vs. Kings heirs, 8 Hump, 237 Guion VS..
| Anderson, Hump, 24S.
On<the birth of issue born alive and
| capable Of inheriting the estate, the
/ husband instantly becomes tenant by
/ the courtesy iJti{idte, with power to
charge the lands and receive the emble-
ments. etc; but his estate is not cOIS3trl-
mate until the death of the wife, which
I connpIetes his title as tenant by the
/ courtesy of England. = Blackstone
com, 125; Roper on husband and wife,
vol. p p 3.
The nature of this estate is peculiar
! not only on account of the seizin, but
/ the incidents that arise from 1t, and the
! manner in which it may be defeated.
/ The estate although springing cut OF
and dependentupon the marriage, selzin
/ OF the wife only vests in the husband on
| the birth of issue capable of inherltlng,
| and when once vested, it was not suffered
to be determined by the subsequent
death, or coming Of age OF the infant.
| Blackstone, com. 127.
! 1t is applicable alike to after acquired
/ lands bv the wife as well as those owned
at the time Of her OOVerturs. BY the
] marriage the husband acquired, and dur
| ing the marriage enjoys a freehold inter-
est in bis wife's real estate during their
Joint lives, both being seized in her right
/ by entirsties, the effect of which IS to
/ put the ownership for the cOverture en-
tirely in the husbands power. He can
| as a consequence, ALLEVIATE this ownership
| at pleasure, and his conveyance will pass
/ the freehold without the Wife's co-ope-
ration. Mcqueen on husband and
wife, q.
The ultimate property or fee OF
the estate by virtue Of the hus-
bands title by courtesy, is not vested
in him but remains in the wife,
subject to the husbands rights, snd
it cannot be parted with by the separate
action Of the wife during cOverture, but
must be passed by our laws under deed
jointly executed by husband and wife
with the private examination OF the
wife as required by the ferns OF cur
statute. 10.
This peculiar estate, although limited
to the life of the husband after lawful
marrisge, seizin of the wife, and issue
which, by possibility, may inherit
the estate, is a well defined freehold
estate in the husband, held in right Of his
wife, over which he possesses the power
of alienation, and which, prior 20 an ael
oflS49J50 ch. SO, could be seized and sold
by his creditors. But it may be forfeited
or discontinued as at the common law
by the birth of a posthumOus son, brother
TO the wife, who has the right Of entry
or the wife's attaindeT treason aftel
marriage, and before the birth OF issue
Roper on husband and wife, IS.
In like manner q ji-oroe q pfRoUtt
HidtTimOItii, granted in the spiritual courts
would defeat the courtesy of the nus
band, so also a disseiZure Of the wife, Of
any other thing which defeated the titl'
lin the wife. Blackstone com. 435-44O.
But under our law where divorces from
the bonds OF matrimony are frequently
granted for causes arising after the mar
rage, and in no way affecting the valid
ity of the original contract, does this re
I
divorce, q iiaculo, could only be granite,
on the grounds that the marriage wa
void a6 il3itiO 4; and cOurtesy,in such case
did not attach, because there never wa
a lawful marriage in this state, and, II
fact in this case the marriage was valid
, and after the title by courtesy vested IL
the husband, the bonds Of matrimon,
were severed by the solemn judgmen
I of the chancery court for Supervenlen
cause. BY that act, what becam
of the husbands courtesy? The estat
before the divorce was joint and held b.
eg,firetfes What now are their respect
i've rights in regard 70 it2
This court, ia the case OF Ames VS.. Nor
man ct al, 1 Hump. 6sS, in an analogou
ease, has appropriately said: " The
are no longer one legal person; the lay
! itself has made them twain; they are n
longer capable of holding by entireties
the relations upon which that tenantc
depends has been destroyed the one le
cal person resolved by Judgment Of Law
4 | into two distinct individual persons, hav
! ing in the future 10 relations to eae
other. and with this change Of their re
: lations must necessarily follow CORES
; ponding change of the tenantey depen
{ dent upon the previous relation. As the
q cannot longer hold by joint seizure, the
. | must hold by moities. The law in dG
. stroying the unity of persons betwee
. them has, by necessary consequence, d(
Q ssroyed the unity OF seizin in respect
their Joint estate; for independent of tn
J, matrimonial union this tenantcy cannC
: exist"
= Admitting the consequences to folio
> on the severance of the marriage rels
; tjons. laid down ia the above recite
: cases, and we are unable to see any vail
Z reason why such results would not
q necessity flow from the divorce, whit
e effect do they have upon the title in th
y case, vested by the husbands deed in Il
y defendant2 Tie deed, we have hell
was imperative to pass the fee OF Il
: complainant, but it 10 admitted It vi
effective to pass the husbands estate
( the courtesy, up to the time OF the diss
q lniion Of the bonds OF matrimGny. No
does the iadgmentof this law, divoroiE
g the parties sps0 fsscf0, work q diseentinl
4 anee OF the husbands courtesy and d
ei feasance Of the title vested ia
alienee2 We think not. The marriss
y was lawful. the seizin Of the wife con
y piete. and the issue inheriiable. NothiI
4 remained to make the husbands title
eourtesy consummate hut the death
ie the wife. 1t begun with the birth
2 issue. and although initiate, it was Il
q subject Of transfer, and might be chargi
:. with the debts Of The husband, and, b
2, fore the act Of IS49-'50, seized and so
by his creditors.
y A divorce q aif,clfo, for cause .arisil
q. subsequent to the vesting Of the TILE
~ courtesy, and N 30 degree affecting 4
y. validity OF the original marriage co
trace, cannot be held to defeat the col
q tesy, especially ia the yepiee. 2he 60
- sequences Of such doctrine would
q fraught with unhappy results TO societ
- The just expectations OF purchase
~ would be disappointed. and their estai
q suddenly Terminated, through the int
40 vention of a cause Of which they COZ
ss have no notice, and against the exlsten
81 which every legal presumption aris
40 The defendant became vested BY
e. hnse with the right Of the husoar
10 - Il vested at the time Of the sale, q
9 ha ho1sis the estate free from all tuts
It's accidents aud contingencies that mig
ld have affected L as against the husbaI
had the estate remained in him.
= We are therefore Of the opinis
'ie mai the deed executed BY Charles
~ ciilespie for himself and As attorney
- fsef 81 The complainant and others, v
70 onerative to pass dillespie's title as t.
- - art f,v the courtesy, ana vested the p