« AnteriorContinuar »
as if she were a single woman, "and the Gill, 8 Md. 461; Rice v. Hoffman, 35 Md. same shall in no way be subject to the con- 344; Porter v. Bowers, 55 Md. 213. trol of her husband nor liable to his debts," -“that the property, real and personal, Guernsey v. Lazear, 51 W. Va. 328, 41 S. E. belonging to a woman at the time of her 405; McNeeley v. South Penn Oil Co. 52 marriage, and all property which she may W. Va. 616, 62 L.R.A. 562, 44 S. E. 508; acquire or receive by purchase, gift, grant, Hudkins v. Crim, 64 W. Va. 225, 61 S. E. devise, bequest, or in a course of distribu166; Calvert v. Murphy, 73 W. Vå. 731, tion, shall be protected from the debts of 52 L.R.A.(N.S.) 534, 81 S. E. 403.
the husband, and not in any way liable for In Arkansas the Constitution of 1874 the payment thereof,” etc. Rice v. Hoffman, abolished estates by curtesy initiate, and 35 Md. 350. left only the possibility of the estate by --that no real estate belonging to a marcurtesy consummate. Loyd v. Planters' ried woman “shall be subject to be sold or Mut. Ins. Asso. 80 Ark. 486, 97 S. W. 658, leased by the husband, for the term of his citing Neelly V. Lancaster, 47 Ark. 175, own life, or any less term of years, except 58 Am. St. Rep. 752, 1 S. W. 66, and Hamp-by and with the consent of the wife, first ton v. Cook, 64 Ark. 353, 62 Am. St. Rep. had and obtained, to be ascertained and 194, 42 S. W. 535.
effectuated by deed and privy examination, according to the rules required by law for
the sale of lands belonging to femes covert. c. To limit husband's rights. And no interest of the husband whatever in
such real estate shall be subject to sale to That the estate by the curtesy initiate' satisfy any execution obtained against him, has not been abolished, but that the rights, and every suclı sale is hereby declared null and powers of the wife in respect to her and void,” Wilson v. Arentz, 70 N. C. 670, real estate have been enlarged, and those of citing Houston v. Brown, 52 N. C. 17 Jones, the husband correspondingly limited or L.) 161; Jones v. Carter, 73 N. C. 148; Mcqualified, has been held where the statute Glennery v. Miller, 90 N. C. 215. In Richprovides-
ardson v. Richardson, 150 N. C. 549, 134 -that no real estate whereof any mar- Am. St. Rep. 948, 64 S. E. 510, the court ried woman was or may be seised or other reviews the earlier decisions with reference wise entitled to at the time of her marriage, to the statute here quoted, together with a or which she has or may fairly acquire constitutional provision. It said: “We during her coverture, or any interest there are therefore of the opinion that the plainin, shall be liable for the debts of her hus- tiff acquired no right to the cotton as rent band, but the same, and all interest therein, for the land of his wife by virtue of any and all rents and profits arising therefrom, estate in him as tenant by the curtesy inshall be deemed and taken to be her separate itiate, because of the constitutional proviproperty, free and clear from any and all sion (art. 10, § 6) by which it is declared claims of the creditors or legal representa- that a married woman's real and personal tives of her husband, as fully as if she had property shall be and remain her sole and never been married: Provided, that this separate estate, and that she may devise and law shall not be so construed as to apply bequeath the same, thus depriving her to debts contracted by such married woman husband of any interest therein. Walker v. before such marriage, but in all such cases Long, 109 N. C. 510, 14 S. E. 299; Tiddy v. her said property shall be first liable there. Graves, 126 N. C. 620, 36 S. E. 127. As for,” Junction R. Co. v. Harris, 9 Ind. 185, that article of the Constitution was a valid 68 Ani. Dec. 618.
enactment, under the facts and circumstan--that "the husband's contingent right of ces of this case, the plaintiff has no incurtesy shall not be sold for, or otherwise terest, either as tenant by the curtesy subjected to, the payment of any separate initiate or consummate, in rent which was debt or responsibility of his during her reserved in the lease, his wife having belife," Campbell v. Campbell, 79 Ky. 398. queathed the same to other persons. Tiddy
-that "where there was issue of the mar- v. Graves, supra. It is true that at common riage born alive, the husband shall have an law the husband, upon the marriage, was estate for his own life in all the real estate seised in right of his wife of a freehold owned and possessed by the wife at the interest in her lands during their joint lives, time of her death, or of which another may and that, either as tenant by marital right be then seised to her use. Such estates or as tenant by the curtesy initiate, he was shall, however, be subject to the debts of the entitled to the rents and profits, and might wife, whether contracted before or after her lease or convey his estate, and it might be marriage,” Mitchell v. Violett, 104 Ky. 79, sold under execution against him. But 47 S. W. 195. This case reveals the fact radical changes in this respect were effected that the estate by curtesy consummate, as | by the act of 1848 (Revisal, $ 2097). Conwell as that initiate, was abolished in 1894 struing this act, in Jones v. Coffey, 109 N. C. by a statute similar to the Illinois statute 515, 14 S. E. 84, the court said: "Whatever quoted under V. d, infra.
may be the rights of the husband in the -"that no real estate hereafter acquired wife's land after she may die intestate, by marriage shall be liable to execution, the authorities concur in the view that the during the life of the wife, for debts due husband holds no estate during the life of from her husband," Anderson v. Tydings, the wife as tenant by the curtesy initiate 8 Md. 427, 63 Am. Dec. 708; Logan v. Mc.' which is subject to execution, and which he
can assert against the wife. He has the whether the same accrues to her before or right of ingress and egress and marital during her coverture. Provided, that said occupancy, but can
no dominion last will and testament be executed in the over her land, except as her properly con presence of two or more witnesses, neither stituted agent.' In Walker v. Long, supra, of whom shall be her husband" (1848), we find the folowing reference to the act: and that “the true intent and meaning of ‘By virtue of the act of 1848, and the fur- the act of assembly to secure the rights of ther modification made by the Constitution married women, passed the 11th day of of 1868, the tenancy by the curtesy initiate April, 1848, is, and hereafter shall be, that is stripped of its common-law attributes un- the real estate of any married woman in this til there only remain the husband's bare commonwealth shall not be subject to execuright of occupancy with his wife, with the tion for any debt against her husband, or on right of ingress and egress (Manning v. account of any interest he may have, or Manning, 79 N. C. 293, 28 Am. Rep. 324), may have had, therein as tenant by the and the right to the curtesy consummate curtesy, but the same shall be exempt from contingent upon his surviving her.
levy and sale for such debt during the life The husband is still seised in law of the of said wife" (1850). It may be noted that realty of his wife, shorn of the right to prior to the enactment of these statutes take the rents and of the power to lease the legislature of Pennsylvania had abolher lands.
He has by the curtesy ished the necessity for birth of issue as a initiate a freehold interest, but not an es- prerequisite to the vesting of an estate by tate in the property.' It would seem that the curtesy. Clarke's Appeal, 79 Pa. 376; the more recent decision in Taylor v. Tay. Harris v. York Mut. Ins. Co. 50 Pa. 341; lor, 112 N. C, 134, 16 S. E. 1019, is a direct Curry v. Bott, 53 Pa. 400; Woodward v. authority against the claim asserted by the Wilson, 68 Pa, 208; Williams v. Baker, 71 plaintiff. In that case the court, speaking Pa. 476; Gamble's Estate, 5 Clark (Pa.) by Shepherd, Ch. J., says: 'In all of these 4; Teacle's Estate, 6 Pa. Co. Ct. 553, afcases the actual decision (as distinguished firmed in 132 Pa. 533, 19 Atl. 274. In Sharpfrom several expressions founded upon the less v. Il'est Chester, 1 Grant, Cas. 257, there common law) may, it is thought, be recon- is an incidental holding contrary to the inciled with the recent ruling of this court terpretation established by the cases here in Jones v. Coffey, supra, that under the cited. act the husband has no right which he can —that the real estate which is the propassert against the wife in her real property. erty of any married woman before marThis appears to be in accord with the early riage, or which may become ter property declaration of the court that "the sole object after marriage, shall be and is hereby so far of the act was to provide for her a home secured to her sole and separate use that of which she could not be deprived, either the same, and the rents, profits, and inby the husband or by his creditors.” Con- come thereof, shall not be liable to be atceding that the cases may not be alto- tached, or in any manner taken, for the gether harmonious, we must adopt the later debts of the husband, either before or after decisions, and according to these the plain- his death, Martin v. Pepall, 6 R. I, 92; tiff is entitled to recover; for, admitting Ross v. North Providence, 10 R. I. 461; that a divorce a mensa et thoro cannot, as Briggs v. Titus, 13 R. I. 136, citing Briggs it is claimed, affect the property ghts of v. Titus, 7 R. I. 441. the parties (Taylor v. Taylor, 93 N. C. Statutes very similar to those quoted, 418, 53 Am. Rep. 460), the defendant, as supra, have been held to merely prevent the against the wife, had no property rights vesting of an estate in the husband until whatever, but simply a right of ingress and the death of the wife, and in this way her egress for the purpose of enjoying her so- estate is protected, but it is said that estates ciety, and these he has forfeited during by curtesy initiate are not abolished, but the coverture, or until a reconciliation, by merely made contingent, instead of vested, his own misconduct. Taking the other view, estates. Stewart v. Ross, 50 Miss. 776; however, and admitting that the husband Hill v. Vash, 73 Miss. 849, 19 So. 707. had a right to the rents and possession of In Missouri a statute provides that the the land during coverture, we think that husband's interest in the wife's real estate such rights must yield when they come in cannot be conveyed by him unless the deed conflict with the paramount rights of be "acknowledged by her in the manner now the wife, as indicated by the act of 1848. provided by law.” Marshall v. Anderson, It appears in this case that there was a 78 Mo. 85; Rust v. Goff, 94 Mo. 511, 7 S. W. written lease signed by the plaintiff and 418. So, it has been held that if the wife his wife, but there was no privy examination is not examined separate and apart according of the latter, as required by the act of 1848 to statute when she acknowledges the deed (Revisal, $ 2097), and also by the Revisal, by herself and husband for her property, $ 2096. The lease was therefore void as to the deed is ineffectual to convey even his the wife, and passes no interest to the hus interest as tenant by the curtesy initiate band in the rents and profits of the land, (Rust v. Goff, supra), and that the dedicaif otherwise he would have acquired an in- tion to public use of the wife's real estate terest.”
by the husband alone is ineffective to con--that, “any married woman may dis- vey even the husband's estate by the curpose by her last will and testament of her tesy initiate (Marshall v. Anderson, supra). separate property, real, personal or mixed,' But this rule appears to have been complete. ly changed by the later statute, for in Teck-, summate are not abolished unless the statenbrock v. McLaughlin, 246 Mo. 711, 152 ute expressly so provides, and have held S. W. 38, the court, with reference to the that the estate by the curtesy consummate act of 1889 and prior acts, said: "Whether has been abolished by statutes or constitua husband's curtesy in such property of his tional provisions in the nature of married wife is more than an estate for his life women's acts. For the purpose of illusafter her death contingent upon her fail- trating the various interpretations placed ure to sell is a question not definitely set upon this particular kind of statute, these tled in this state," and cited Farmers' Exch. cases are here cited. They have a direct Bank v. Hageluken, 165 Mo. 443, 88 Am. St. bearing upon the effect of this class of legisRep. 434, 65 S. W. 728, and Myers v. Hans- lation upon estates by the curtesy initiate. brough, 202 Mo. 495, 100 S. W. 1137. But In some cases it has been held that esfrom these holdings it is very apparent that tates by the curtesy consummate have been the statutes have at least destroyed the abolished; this, of necessity, abolishes esincidents to or attributes of estates by the tates by the curtesy initiate. It has been curtesy initiate. But it was held in Ennis so held where the statute providesv. Eager, 152 Mo. App. 493, 133 S. W. 850, -“that if the wife, seised of an estate that, notwithstanding the fact that by vir- in her own right, shall, at her death, leave tue of the statute the wife cannot convey issue by a former husband, to whom the or encumber her separate estate without the estate may descend, such issue shall take husband joining, a lease of her separate the same, discharged from the right of the property in which her husband does not surviving husband as tenant by the curtesy" join does not convey “a complete or mer- (limited to other than first husbands), chantable title thereto," on account of the Hathon v. Lyon, 2 Mich. 93; husband's prospective right to curtesy there
that the wife shall have full and abso. in. The holding appears to be inconsistent. lute control of her real and personal es
Some expressions used by the courts in tate, with power to contract, sell, transfer, Tennessee would lead to the conclusion that mortgage, convey, devise, and bequeath the the statute referred to in BRYANT v. FREE- same in the same manner and with the like MAN abolished estates by the curtesy initi-effect as if she were unmarried, Tong v. ate, or that the estate never existed (see Marvin, 15 Mich. 60; Brown v. Clark, 44 quotations in BRYANT v. FREEMAN to the Mich. 309, 6 N. W. 679; efi'ect that curtesy cannot exist during cov- In Deutsch v. Rohlfing, 22 Colo. App. 543, erture). And it has been held that the 126 Pac. 1123, the court said: “It is comwife can maintain a separate action for mon knowledge that the husband's estate possession in the lifetime of the husband. by curtesy, like the right of dower of the McCallum v. Petigrew, 10 Heisk. 394. On wife, has had no existence or recognition in the other hand, there are many decisions this state; and there is no reason to supby the Tennessee courts since the enact- pose that principles applicable to curtesy ment of the statute in which the existence or dower, as at common law, have inof the estate by the curtesy initiate has fuenced in any degree our legislation as it been recognized or assumed. In Gillespie v. existed when the state was admitted, and Worford, 2 Coldw, ( the court, while con
has existed to the present time, concerning sidering the effect of a divorce upon the es- the property rights of either husband or tate by the curtesy initiate, refers to the wife. It has long been settled, by repeated statute of 1849 as having abolished the right decisions of our courts, that, under our of the creditors of the husband to sell his laws, the husband has no vested right, inestate by the curtesy initiate on execution choate or other, by reason of the marital for his debts. In Corley v. Corley, 8 Baxt. relation, in the property belonging to his 8, the court quotes with approval from Prat- wife, and that she holds an absolute legal er v. Hoover, 1 Coldw. 544, that “the spirit estate in her real and personal property, and intention of the act of 1849 is that wives whether owned at the time of marriage or shall not be deprived of their real estate by acquired during coverture, as free from any any act of their husbands, without their common-law right of her husband as if she solemn and free concurrence in the single were unmarried. “As to her separate estate, mode prescribed by law," and holds that if she has no husband.' Wells v. Caywood, forced by the cruel and inhuman treatment 3 Colo. 487; Palmer v. Hanna, 6 Colo. 55; to separate from him, the wife may, by bill Colorado C. R. Co. v. Allen, 13 Colo. 229, in equity, have a suitable provision made 22 Pac. 605; Knight v. Lawrence, 19 Colo. for her support out of the rents and profits 425, 36 Pac. 242; Schuler v. Henry, 42 of her land. The court in Stokely v. Slay. Colo. 367, 14 L.R.A. (N.S.) 1009, 94° Pac. den, 8 Baxt. 307, recognizes or assumes the 360.” existence of an estate by the curtesy initiate.
An act to revise the law in relation to
dower, which provides “that the estate of d. To abolish all estates by the curtesy. curtesy is hereby abolished and the sur
viving husband or wife shall be endowed As stated, supra, this note does not deal with the third part of all lands whereof the with the general question of abolishing es deceased husband, or wife, was seised,” tates by the curtesy consummate. But abolishes estates by the curtesy, and subthere are a few decisions where the courts stitutes dower instead. Jackson v. Jackson, appear to have abandoned the well-estab. 144 Ill. 274, 36 Am. St. Rep. 427, 33 N. E. lished rule that estates by the curtesy con. 51. This statute does not come within the
class of legislation here considered, as it ex- | Willis, 7 Allen, 370, 83 Am. Dec. 688; pressly abolishes all estates by the curtesy, Whitehouse v. Cummings, 83 Me. 91, 23 and substitutes another. It is here cited | Am. St. Rep. 756, 21 Atl. 743; Dolliff v. for the purpose of distinction only.
Boston & M. R. Co. 68 Me. 173; Stevens J. W. M.
v. Orr, 69 Me. 323; Stillwell v. Foster, 80 Me. 333, 14 Atl. 731; Allen v. Kincaid, 11 Me. 155; Seeley V. Bishop, 19 Conn. 128 ;
Abbott v. Stewartstown, 47 N. H. 230; Og. VERMONT SUPREME COURT.
den v. Jennings, 62 N. Y. 527; Root v.
Wadhams, 107 N. Y. 385, 14 N. E. 281; PATRICK F. HOWLEY
Nichols v. Luce, 24 Pick. 102, 35 Am. Dec. GEORGE T. CHAFFEE, Impleaded, etc., N. H. 386, 22 Atl. 592; Bonelli Bros. v.
302; Batchelder v. State Capital Bank, 66 Appt.
Blakemore, 66 Miss. 136, 14 Am. St. Rep. I- Vt. 93 Atl. 120.)
554, 5 So, 228.
Messrs. J. C. Jones and Charles L. Easement implied reservation in Howe, for appellee: grant.
Upon the severance of a heritage, a A grant by metes and bounds of a parcel grant will be implied of all those continuof land over which a visible right of way ous and apparent easements which have in exists in favor of remaining land of the grantor which is located on a public high- fact been used by the owner during the way, by a deed containing full covenants of unity, though they have no legal existence warranty and no express reservation, does as easements; and the law will imply a not reserve the right of way by implication, reservation of like easements in favor of although it is reasonably necessary for the the part of the heritage retained by the full enjoyment of the grantor's remaining grantor. land, since under such circumstances a reser
Harwood v. Benton, 32 Vt. 724; Goodall vation of easement is implied only in case of strict necessity.
v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671;
Willey v. Thwing, 68 Vt. 128, 34 Atl. 428; (January 23, 1915.)
Dee v. King, 77 Vt. 230, 68 L.R.A. 860, 59
Atl. 839. PPEAL by defendant Chaffee from a From the necessity of a right of way to A
decree of the Chancery Court for Rut- the reasonable use and enjoyment of land land County in favor of plaintiff in a granted or reserved, is to be found an imsuit to enjoin defendants from closing up plied grant or reservation of such right, in an alleged right of way of necessity to the absence of some expressed negation plaintiff's buildings. Reversed.
thereof in the deed. The facts are stated in the opinion.
Wiswell v. Minogue, 57 Vt. 616; Dee v. Messrs. F. S. Platt, W. B. C. Stickney, King, 77 Vt. 230, 68 L.R.A. 860, 59 Atl. and T. W. Moloney, for appellant: 839; Rollo v. Nelson, 26 L.R.A. (X.S.) 315, A way of necessity never exists where and note. get to his
property through his own land, however inconvenient
Powers, Ch. J., delivered the opinion of the way through his own land may be.
the court: Dee v. King, 73 Vt. 375, 50 Atl. 1109;
George Richardson in his lifetime owned Washb. Easements, § 233; Hyde v. Jamaica, 27. Vt. 449; Harwood v. Benton, Center street in the city of Rutland. He
a large parcel of land on the south side of 32 Vt. 724; Goodall v. Godfrey, 53 Vt. also owned a 12-foot right of way to the 219, 38 Am. Rep. 671; Willey v. Thwing, east end of this land from Wales street, 68 'Vt. 128, 34 Atl. 428; Wiswell v. Min which crosses Center street east of this ogue, 57 Vt. 620; Plimpton v. Converse, property. On May 23, 1883, Richardson 42 Vt. 716; Stuyvesant v. Woodruff, 21 conveyed a part of this land to one Martell. N. J. L. 133, 47 Am. Dec. 156; Carbrey v.
The land so conveyed, hereinafter called Note. - As to easements created by sever- the Martell lot, is in the northeas' corner ance of tract of land with apparent benefit of the original parcel, and is about 35 feet existing, see notes to Rollo v. Nelson, 26 wide on Center street and 80 feet deep. On L.R.A.N.S.) 315; Duvall v. Ridout, L.R.A. December 11, 1906, Addie Richardson, who 1915C, 345); and Watson v. French, L.R.A. became the owner of the remaining prop19150, 355.
erty at George Richardson's decease, conAs to way of necessity where other possible modes of access exist, see notes to veyed to the defendant Chaffee all that reCorea v. Higuera, 17 L.R.A. (N.S.) 1018, mained of the original parcel, including the and Doten v. Bartlett, 32 L.R.A.(N.S.) right of way, except a piece next west of 1075.
the Martell lot. The piece so excepted has
a frontage on Center street of 55 feet and came nearly to the west line of the Chaffee is 80 feet deep. The land conveyed to lot at that point, and quite to the south Chaffee is irregular in shape, as will here. line against the Bardwell stable.
It exinafter appear.
On July 18, 1912, Addie tended east to a point about as far as the Richardson conveyed to the orator the middle of the Martell lot, and had a shed land excepted from the deed to Chailee, and attached at its southeast corner. There the same is hereinafter called the Howley was an open space on the Chaffee lot in the lot. At the time Mrs. Richardson deeded
rear of the Martell lot, extending from the to Chaffee, the buildings and structures cast side of the platform to the east line standing on the premises mentioned were of the lot, and the east part of this space located as follows: On the Martell lot was extended south along the cast end of a brick block fronting on Center street, south barn to the shed mentioned. The with a wooden addition on the rear. This right of way from Wales street ran to the structure occupied the whole width of the east line of this open space. It thus aplot, and all of its depth, except about 7 pears that the Chaffee lot was fully covered or 8 feet. This left an open space between with buildings and structures, except this the Martell buildings and the south line open space cast of the platiorm and the of the lot about 35 feet east and west, south barn. By the deed to Chaffee, a 10and about 8 feet north and south. On the foot open space across the rear of the HowHowley lot was a brick block fronting on ley lot was stipulated for, to be used for Center street. This block was 55 feet wide a common passageway; and for light, air, and 50 feet deep. It occupied the entire, and fire escapes for both parties. The Howfrontage of the lot, and had a wooden adley block was divided on Center street into dition on the rear at the southeast corner. three stores and a stairway leading to the An old barn, hereinafter called the north upper floors. The stores had basements barn, stood on the IIowley lot in the rear which opened into the 4-foot space above of the block just mer tioned. This barn mentioned. Ever since this block was built extended practically (if not quite) to the (1885), Richardson and his tenants have west line of the Howley lot, and practically continuously used the right of way from (if not quite) to the south barn, herein-Wales streets Their teams would come in after described. There was an open space from Wales street, swing around the northbetween the north barn and the Ilowley east corner of the south barn to the platblock of about 4 feet, extending from the form above mentioned. This is as far as west line of the lot to a point about 10 feet teams could go, as the north barn, the harfrom the east line thereof, where it came ness shop, and the platform blocked the to the wooden addition already referred to. way. The evidences of this use of a way This addition completely filled the space be by the occupants of the Howley block were tween this barn and the Martell lot to a plain to be seen upon the ground. Some point as far south as the addition of the use of the open space on the rear of the Martell block extended. And from that Martell lot was also made by these teams, point a platform extended south to the especially in turning around, as the space south line of the Richardson land, com- next to the platform and on the Chaffee lot pletely filling the space to the south barn was only about 10 feet wide. There was no and the east line of the Howley lot. This opening in either the north or east walls wooden addition to the Howley block was of either of the barns, except a door in the used for a harness shop. It thus appears east end of the south barn nearly or quite that the Howley lot was completely cov-opposite the right of way to Wales street. ered with structures, except for the 4-foot Notwithstanding the finding that at the space above mentioned. On the land con- times the Chaffee and Howley deeds were veyed to Chaffee was a livery stable given, the Howley lot was fully covered with fronting on Center street, occupied by one buildings and structures, except as noted, Morse as tenant. This stable was a rect- and teams could only go as far west as the angular, wooden building, extending from platform, the chancellor finds that there the Howley block to the west and south was access to the rear of the Howley block, lines of the west part of the Chaffee lot. and the basements therein, by those on foot, The Chaffee lot also included a strip of land and that a constant use was made of this lying south of the Howley and Martell lots way out from the basements. If this be and some land extending further south to so, such access must have been through the the Bardwell stables, so-called. So the deed harness shop, for, as we have seen, there to Chaffee included 8 or 9 feet off the south was no opening in the east or north walls side of the north barn and the platform at of the north barn, and this barn and the its east end. South of this barn, and on harness shop filled the space on the Howley the Chaffee lot, stood another old barn, | lot. The lease of the livery stable and old hereinafter called the south barn. This' barns did not expire until April 1, 1913, so