[* 37 ]

*This case was distinguished from Seymour's, because, in that case, the fine was not levied until a year after the bargain and sale was enrolled, and it was expressly found by the verdict, that the bargainee entered, and was seised by force of the bargain and sale only; so that the bargain and sale was totally unconnected with the fine; nor did it appear that any fine was intended to be levied at the time when the bargain and sale was executed.

In the case of Moor v. Blake, (1) which was an ejectment tried before the late Mr. Justice Gould, the title of the lessor of the plaintiff was under a marriage settlement, by which certain premises were settled on the husband and wife for their lives, and the life of the survivor, remainder to trustees, to preserve contingent remainders, remainder (after a power of appointment which had never been executed) to all and every the children of the marriage, as tenants in common in-tail, with cross remainders, in default of issue of any child, to the survivors in-tail, with the remainder to the survivor of husband and wife, in fee. Three daughters were the issue of the marriage; the first of whom died without issue, the second married the lessor of the plaintiff, and the third married the defendant Blake, and died without issue; previous to her death, however, she and her husband had levied a fine with proclamations of her moiety, to recover which the ejectment was brought. The counsel for the defendant proved the fine levied with proclamations, upon which the plaintiff was nonsuited: the learned judge declaring, that, in his opinion, the levying of the fine had discontinued the estate-tail, taken away the claimant's right of entry, and driven him to his writ of formedon.

[* 38] *By the common law, the alienation of a husband, who was seised in right of his wife, worked a discontinuance of her estate; but now, by the 32 Hen. VIII. c. 28. s. 6. it is provided, that no act of the husband only shall work a discontinuance of, or prejudice, the inheritance or freehold of the wife. but that, after his death, she, or her heirs, may enter on the lands in question; and, therefore, the wife, or her heirs, may now, in such cases, support ejectment. [1]

(1) Run. Eject: 45.

[1] The Revised Laws of 1813, (Laws of New-York, Vol. 1, p. 182.) contain the following sections:

"IL And be it further enacted, That no fine, feoffment or other act

A feoffinent by husband and wife is within this statute; because, in

"suffered or done by the husband only of any lands, tenements or heredita"ments being the inheritance or freehold of his wife, during the coverture "between them, shall prejudice the said wife or her heirs, or such as shall "have right or interest to the same upon the death of such wife; but "they may respectively enter into and enjoy the same, according to their "rights and titles therein, as if no such act had been done or suffered."

"III. And be it further enacted, That if the husband lose by default the "land which was the right of the wife, the wife after the death of her hus "band may have a writ of right or an action of ejectment to recover the same, and the judgment by default shall be no bar to such action; and it' any tenant in dower, tenant by the curtesy or other tenant for term of "life or lives, who shall be impleaded, make default or give up the lands demanded, and judgment be given upon such default or surrender, the "heirs or person to whom the reversion or remainder doth appertain after "the death of such tenants, may have their action of ejectment to recover "the same lands." (24th Sess. Chap. 169, Vol. 1, p. 182.)

་་

The provisions on this subjcct made by the "Revised Statutes," now the Law of the State, will be found in Part 2, Chap. 1, Tit. 2 §§ 136, 142, 143, 144 & 145, (Vol. 1, pp. 738, 739); and in Part 3, Chap. 5, Tit. 7, §§ 5, 6 & 24 Vol. 2, pp. 340, 343,) in these Words:

"§ 136. The mode of conveying lands by feoffment with livery of seisin, "is abolished."

"§ 142. Deeds of bargain and sale, and of lease and release, may con"tinue to be used, and shall be deemed grants; and as such, shall be sub"ject to all the provisions of this Chapter, concerning grants."

"§ 143. No greater estate or interest shall be construed to pass by any "grant or conveyance, hereafter executed, than the grantor himself pos"sessed at the delivery of the deed, or could then lawfully convey, except "that every grant shall be conclusive as against the grantor and his heirs "claiming from him by descent."

"§ 144. Every grant shall also be conclusive as against subsequent "purchasers from such grantor, or from his heirs claiming as such, except "a subsequent purchaser, in good faith and for a valuable consideration, "who shall acquire a superior title by a conveyance that shall have been "first duly recorded."

"145. A conveyance made by a tenant for life or years of a greater "estate than he possessed or could lawfully convey, shall not work a for"feiture of his estate, but shall pass to the grantee all the title, estate or "interest, which such tenant could lawfully convey." (Vol. 1, pp. 738, & 739.)

"§ 5. If the husband lose by default, any land which was the right of "his wife, the wife, after the death of her husband, may have an action of "ejectment to recover the same, and the judgment by default shall be no "bar to such action."

"§ 6. All recoveries had by agreement of the parties, or by fraud, "against any tenant for life, in dower, or by the curtesy, of any lands, tene86 ments or hereditaments, shall be void against all persons to whom any "reversion or remainder of such lands may appertain, and against their "heirs, unless the appearance of the person having such reversion or re

substance, it is the act of the husband only;[2] but a fine levied by the husband and wife is not.(m)

(m) 1 Inst. 326, (a) Cromwell's case, 2 Co.77, (b)

"mainder, shall have been duly entered in the court where such recovery "shall be had. But this provision shall not extend to any person who shall "recover any lands, tenements or hereditaments without fraud, by reason "of any former right or title."

"24. All writs of right. writs of dower, writs of entry and writs of 66 assize, all fines and common recoveries, and all other real actions known "to the common law, not enumerated and retained in this Chapter; and 'all writs and other process heretofore used in real actions, which are not "specially retained in this Chapter; shall be, and they are hereby abol"ished." (Vol. 2, pp. 340, 313.)

Acording to the decision of the Supreme Court in the case of Jackson cx. dem. M'Crea vs. Mancius & Al. (2 Wend. Rep. 357.) the effect of the above provisions in the Revised Laws, of 1813, and the Revised Statutes," respectively, must be the same, although somewhat different in terms: The Court Held, That, a deed by a tenant by the curtesy, although purporting to convey a fee, passes only a life estate, when it is affirmatively shewn that the grantor had only an estate for life, and when the form of conveyance used by him carries only such estate as he had. SAVAGE, Ch. J. in delivering the Opinion of the Court, made the following remarks: "Could not, then, a tenant by the curtesy convey in fee without having an estate in fee? The parliament of Great Britain supposed that such "an act might be done, and guarded against it by statute 32 Henry 8, ch. "28, which provision was re-enacted in this state at an early day, (1 R. L. "181, 2, 3) by which it is enacted, that no fine, feoffment or other act "of the husband in relation to the freehold or inheritance of his wife, shall "prejudice such wife or her heirs."

"I conclude, therefore, that there is nothing in the fact of McCrea's conveying a fee, to shew that he had the capacity to convey such an és"tate when it is shewn that he had only an estate for life, and when, also, "the form of conveyance used by him carried only such estate as the grantor had."

61

66

"Estates for life are considered at common law as strict feuds, and "are forfeitable for certain causes. If tenant for life, including tenant by "the curtesy, takes upon him to convey a greater estate than he has, " in such a manner as to divest the estate in reversion or remainder, "such conveyance will operate as a forfeiture of his estate for life, and the reason given (a very singular one in this country,) is because it is a re"nunciation of the feudal connection between him and his lord. (1 Cruise, "122, §36, and 173, § 31. Co Litt. 252, a Com. Dig. Forf. a. 1,) "The form of conveyance for this purpose must be such as to divest the "estate of the reversioner or remainderman, and these were three: feoff"ment with livery of seisin, fine, and common recovery; but a conveyance by lease and release, or bargain and sale, is no forfeiture.

[2]

"II. And be it further enacted, That no estate of a feme covert, 66 residing in this state, shall pass by her deed, nor shall the same be re"corded without a previous acknowledgment taken in manner aforesaid

When, also, the husband and wife are jointly seised to them and their heirs, or the heirs of their two bodies, of an estate made during the

"If the conveyance in this case was by feoffment, the injury is one which "is termed a discontinuance, the entry of the feoffee being lawful during "the continuance of the particular estate, but by his continuance in posses"sion after the death of the feoffor, the legal estate of the heir was gone or at least suspended, and for a while discontinued. When the right of "entry is thus lost, and the party can only recover by action, the posses"sion is said to be discontinued. By the common law, the alienation of a "husband who was seised in right of his wife, worked a discontinuance of "the wife's estate, till the statute 32 Hen. 8, ch. 28, provided that no act "by the husband alone should work a discontinuance of, or prejudice the "inheritance or freehold of the wife. (Jacob's Law. D. tit. Discontinu"ance.)

66

"In order to prove a forfeiture, therefore, in the conveyance by Mc"Crea, it should have been shewn to have been a feoffment with livery of ❝ seisin. As this mode of conveyance is nearly obsolete in England and very little used, and the more common species of assurance being lease "and release and bargain and sale, we will not presume that a feoffment "with livery was executed in this instance. It is equally probable that "one of the other modes of conveyance was adopted, which, though in "terms purporting to convey a fee, yet in reality transfer no more or great.. er estate than the grantor had. The fact, then, of a forfeiture is not sa"tisfactorily shewn. But suppose the conveyance to have been a feoff"ment, 2. Did a right of entry accrue ? and was the heir bound to enter ? "Littleton says, (sect. 594.)" If a man be seized of land as in right of his "wife, and thereof enfeoff another and dieth, the wife may not enter, but "is put to her action, the which is called cui in vita." But this is altered, says Coke, since our author wrote, by the statute 32 Hen. 8. by the pro"vision of which statute, the wife and her heirs, after the decease of her husband, may enter into the lands or tenements of the wife, notwith"standing the alienation of her husband.

"From what has already been said, and from the cases referred to, it "would seem that the criterion of the forfeiture is the actually divesting of "the estate of the remainderman or reversioner-the passing an estate "which the grantor has no right to pass; and as the statute has interpos "ed in this case to prevent such an effect from the feoffment of the hus"band, I think it follows that a feoffment in such case by the husband of ·his wife's estate does not work a forfeiture." (2 Wend. Rep. 363 to 366.) "By the common law, a bargain and sale could not work a forfeiture or "discontinuance of the estate; it being a general rule that no alienation "which is not made by livery of seisin, or by that which is equivalent, can "work a discontinuance." (Per WILDE, J. delivering the Opinion of the Court.) Stevens et Ux. vs. Winship et Ux. 1 Pickering's Rep. 327.

"

A conveyance in fee, by a tenant by the curtesy, although acknowledged and recorded, is not a forfeiture of his estate. M'Kee's Lessee vs. Pfout, 3 Dall. Rep. 488 489.

"and made by her on a private examination, apart from her husband, that " she executed such deed freely without any fear or compulsion of her "husband, which shall in like manner be contained in the certificate of

coverture, and the husband makes a feoffment in fee, and dies, the wife may enter under the provisions of this statute, although it was the inheritance of them both. (n)

(n) 1 Inst. 326, (u). Greenley's case, S Co. 142, (b)

"such acknowledgment, to be endorsed on such deed. But where any "feme covert not residing in this state, shall join with her husband in any "deed or conveyance, of or relating to any lands or real estate situated "within this state, she shall thereby be barred of and from all claim of "dower, and all other right and title therein, in like manner as if she were "sole, and the acknowledgment or proof of such deed, conveyance or "writing may be the same as if she were sole, and shall entitle such deed, conveyance or writing to be recorded as aforesaid." (36th Sess. Chap. 97, § 2. 1 R. L. [of New-York, 1813.] p. p. 369, 370.)

66

The "Revised Statutes," Part 2, Chap. 3, §§ 10 & 11, (Vol. 1, p. 758.) enact as follows.

16

"§ 10. The acknowledgment of a married woman residing within this state, to a conveyance purporting to be executed by her, shall not be "taken, unless in addition to the requisites contained in the preceding sec❝tion, she acknowledge, on a private examination, apart from her hus "band, that she executed such conveyance, freely, and without any fear or compulsion of her husband; nor shall any estate of any such married "woman, pass, by any conveyance not so acknowledged."

"11. When any married woman, not residing in this state, shall join "with her husband, in any conveyance of any real estate, situated within "this state, the conveyance shall have the same effect as if she were sole; "and the acknowledgment or proof, of the execution of such conveyance "by her, may be the same as if she were sole."

Whore a wife joins with her husband in the execution of a decd of her own lands, but does not acknowledge the deed before a magistrate, according to the statute, her right is not devested. Jackson ex dem. Carson & Al. vs. Cairnes & Al. 20 Johns. Rep. 301. Jackson ex dem. Sinsabaugh & Al. vs. Sears, 10 Johns. Rep. 435.

A deed executed by a Feme Covert is not binding upon her, until acknowledged, and her subsequent ackowledgment does not relate back to the time of the acknowledgment of the deed. So, where a husband and wife execute a deed for land of the wife, but which she does not then acknowledge, and the husband and wife afterwards execute another deed of the same land, which is acknowledged by the wife, and the wife then acknowledges the first deed, the title to the land is vested in the grantee in the second deed. Jackson ex dem. Stevens vs. Stevens, 16 Johns. Rep. 110.

The certificate of the acknowledgment of a deed by a married woman, for the conveyance of her lands, under the act of the 24th February, 1770, [Laws of Pennsylvania, Chap. 616, § 2, Vol. 1, of Dallas' Ed. p. 536.] ought to state substantially, that she was separately examined, that she had a knowledge of the nature and consequences of the act she was about to perform, and that her will in the performance of it was free. Therefore a certificate merely stating, that she was of full age, and separately and apart examined, and the contents of the deed made known to her, without mentioning that she voluntarily consented to the execution of it, is insuf