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A

TREATISE

ON THE

LAW OF PROPERTY

ÀRISING FROM THE RELATION

BETWEEN

HUSBAND AND WIFE.

Remarks.

BY marriage, the Husband and Wife are as one Introductory person in law. Upon this union depend almost all the legal and equitable rights and disabilities which either of them acquires or incurs by the intermarriage. The very being or legal existence of the woman is by the common law suspended during the marriage, or at least it is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs every thing (a). Modern times have introduced exceptions to this doctrine, as will appear in the progress of this work; but the general rule still continues, and its wisdom is proved from the inconveniences that have been felt by a departure from it.

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The reasons upon which the law virtually suspends the existence of the woman during the coverture appear to be these:-first, for her husband's safety, in depriving her of the power to injure him by any act without his concurrence, or his assent either expressed or implied; and, secondly, for her own security, in guarding against the husband's influence over her, by disabling her from disposing of her own property, except by those methods and with the solemnities which the law itself prescribes.

I shall consider the subject of this treatise under the four following general divisions, viz.—

FIRST, THE RIGHTS ACQUIRED BY THE HUSBAND

IN THE REAL AND PERSONAL ESTATES OF HIS
WIFE; AND HIS POWER OVER THE SAME.

SECOND, THE RIGHTS ACQUIRED BY THE WIFE IN

THE REAL AND PERSONAL ESTATES OF HER
HUSBAND; AND HER POWER OVER THE FORMER.

THIRD, THE EFFECTS OF MARRIAGE UPON THE ACTS AND AGREEMENTS OF HUSBAND AND WIFE PRIOR TO MARRIAGE, AND THE HUSBAND'S LIABILITY IN RESPECT OF THOSE ACTS AND AGREEMENTS. AND,

LASTLY, THE DISABILITIES OF COVERTURE, AND

THE EXCEPTIONS TO THEM.

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CHAPTER I.

THE RIGHTS ACQUIRED BY THE HUSBAND IN HIS WIFE'S REAL ESTATES.

By the intermarriage the husband acquires a freehold interest, during the joint lives of himself and wife, in all such freehold property of inheritance as she was seised of at that time, or may become so during the coverture. Upon this freehold there may be a remitter (a). The husband alone may make a tenant to the præcipe for suffering a recovery (b); and he may take a release or confirmation to enlarge his estate (c): but if he be attainted of felony, the King will not acquire the freehold, it remaining in the wife, but the pernancy of the profits only during the coverture (d). The husband's interest may be defeated by the act of his wife before the birth of issue. If, therefore, she be attainted of felony, the Lord by escheat may enter and eject the husband, so soon as it appears by due process that the King has had his prerogative forfeiture, of a year, day, and waste (e); but not so if the attainder happen after the issue are born (f), for then the husband is intitled to an estate for his own life, and in his own right as tenant by the curtesy initiate. After the birth of issue, the husband alone is intitled to do homage to the Lord for the lands, but before issue born he and his wife must have performed that

(a) Co. Litt. 351. (b) Pig. Rec. 72. Litt. 299. (d) Co. Litt. 351. (f) Co. Litt. 351.

Cruise Rec. 58. (c) Co. (e) 4 Hawk. Pl. Co. 78.

service together (a); so that upon the birth of issue the husband becomes tenant to the Lord, which necessarily prevents an escheat to him for felony committed by the wife. This leads to the consideration of the husband's title to his wife's estate, as

CURTESY.

Its derivation.

TENANT BY THE CURTESY.

In treating upon this subject I shall consider

I. Who may be tenants by the curtesy.
II. Of what estates, and seisins of the wife.

1. Of what estates.

2. Of what seisins-viz.

1. Seisins in fact.

2. Seisins in law; and

3. Seisins in equity.

III. Of the issue as to curtesy.

IV. The nature of the estate of tenant by the cur-
tesy, together with the incidents, privileges,
and powers belonging to it.

V. How curtesy may be defeated and barred.
1. By recovery or eviction under a title
prior to the marriage, distinguishing
between conditions and limitations.

2. By the joint acts of husband and wife.
3. By the husband's acts singly; and
4. By the wife's acts alone.

The term Curtesy, according to Judge Blackstone, was probably derived from the husband's attendance at the Lord's court or curtis, in respect of the wife's real property. So soon as a child was born the father began to have a permanent interest in the

(a) 2 Black. Com. 126; and see infra, sect. 5, pl. 3 and 4.

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