Page:The Green Bag (1889–1914), Volume 02.pdf/287

her, she resumes her place as tenant, as she pass was to his freehold), but if he had had could not do had there been a transfer and no child the action would survive to the re-transfer. wife (having been for an injury to her This may be considered the principle on freehold). which all questions of the husband's control If a man seised in his wife's right is over the wife's property may be determined. returned on a jury and his wife dies, he may The law makes no transfer of rights upon be challenged, and so if he be seised per the marriage, but the husband steps at once anter vie; his freehold ceases instantly in into the possession of the wife, and exer either case. (Co. Litt. 272 b.) By the inter cises all the power she could have done marriage he gaineth a freehold in his wife's right. (Ib. 273 b.) while sole. This is most clearly illustrated in the old For this freehold in the wife's right, he cases precisely where it is oftenest and most must do and receive homage with her. (2 Bl. entirely overlooked to-day, in the law of real Comm. 126.) But as soon as issue is born property. The seisin, the freehold, became the husband has a freehold of his own, as the husband's at once upon marriage; the tenancy by curtesy, and both does and re inheritance, the remainder or reversion, was ceives homage alone, as all authorities say. unaffected.1 The freehold became the hus After the wife's death the tenant by curtesy band's, and yet the wife did not lose it; she neither does homage nor receives it, because only lost the administration of it. he no longer has an estate of inheritance, — This is very clearly expressed in Y. B. implying that he had one while his wife Mich. 10 Hen. VI. pi. 38, fo. 11 a- 12 a, — a lived, in her right. (Co. Litt. 67 a.) And case in which many points of the law of a feoffment in fee after birth of issue and baron and 'feme are clearly brought out; before the wife's death is not a forfeiture, e. g., that the freehold is in the baron for but the feoffee shall hold during the life of the life of the feme (=for coverture) imme the husband. (Co. Litt. 30 a, and reff. in diately on the marriage, and yet if the wife margin.) This seems to show, as it were, a commit felony and is attainted of it, her double right, — of the fee in his wife's right, freehold is " ale a dieu." (Chaunt. 11 b.) of the curtesy initiate in his own. The Although the husband is thus said to have' reason why no homage was done after the the freehold of his wife's lands before the wife's death by tenant in curtesy is given, birth of an heir, yet it is in a different sense Glan. vii. 18 (R. M. ii. 58). It was that by from that which he has after the birth, when receiving homage from him the lord would he is tenant by curtesy initiate. lose his reversion. This shows again that This is clearly shown by Holt, C. J., in the husband's holding in his own right was Park v. Fifield (Comb. 453; 22 Viner, 500). quite a different thing from his holding his A woman, *owner of land by descent, sued wife's possession. her tenant for years for cutting down trees. That tenancy by curtesy is the same estate Some of them had been cut in her husband's of freehold which the husband possesses, lifetime, and it was held that as he had issue after the birth of issue, during the wife's and was tenant for life, and intituled to be life, and not a new estate beginning at the tenant by curtesy (if he had survived her), wife's death, is shown by an ancient record she could have no action (because the tres- of 20 Hen. VI., quoted in Co. Litt. 29 b. That king, by his letters-patent, recites 1 That the; husband has nothing in the wife's that Richard, Earl of Salisbury, had married reversion is conceded. Mich. 8 Hen. VI. pi. 32, the daughter of Thomas, former Earl of fo. 13 b. Upon the wife's merger in the husband's person, Salisbury, and had issue by her before the death of her father, and that both the wife see Mich. 7 Hen. VI. pi. 15, fo. 9, etc.