suit of the heir, although such tenant may have CURTESY. assigned his interest before the waste was committed; Nature of the because that case is not provided for by the statute, estate, &c. and the common law continues unaltered (a).

With respect to waste committed by tenant by the curtesy, and his liability for permissive waste, he stands in the same situation as tenant in dower. The subject is particularly discussed under title "Dower," to which the reader is referred (b).

years,

2. Tenant by the curtesy having but a freehold interest in his wife's estate, cannot lawfully dispose of it for a longer period than during his life. As May grant incident to that estate, he may, after his wife's death, leases for grant leases for years of the property, which will continue so long as he lives. With his life, however, they will so completely expire as to be incapable of being revived or confirmed by the acceptance of rent, &c. (c).

tempore,

If the estate holden in curtesy be a manor, tenant And, as dominus proby the curtesy is Lord of it pro-tempore; he may, therefore, grant the lands, holden of it, by copy grant by of court roll, at the ancient rents and services, and copy of pursuant to the custom; and such grants will bind the owner of the inheritance (d),

Upon the whole, whatever a dowress, or other mere tenant for life, may do, either as to passing or charging their respective interests, so also may a tenant by the curtesy.

I shall now proceed to consider

court-roll.

(a) 3 Rep. 23, 6. Fitz. Nat. Brev. 56. (a) Miller v. Mainwaring, Cro. Car. 398. also infra, chap. 9, sect. 4.

(b) Chap. 9, sect. 4. (d) 4 Rep. 23, b.; see

CURTESY.

When de

feated by wife's eviction from, or the determination of her estate.

Curtesy defeated by birth of a

V. How curtesy may be defeated and barred. 1. It will be defeated by the recovery of the estate by a stranger under a good prior title.

In addition to the instances which have been before necessarily mentioned in the second section, in which the seisin of the wife was considered, it is to be observed, that if the possession of the wife be defeated by the birth and entry of her brother, a postposthumous humous son, the title of the husband to curtesy must fail. Yet if the brother die without issue before the wife, and the husband re-enter during the marriage, this will revive his right to curtesy (a).

son.

By entry of donor for breach of a condition.

If the wife's seisin be defeasible by a condition annexed to the grant, and the condition be broken, and the donor enters, the husband's right to curtesy will be defeated; because the donor resumes his original and former estate; by which resumption, the seisin of the wife is the same as if it had never existed; it being, by the donor's re-entry, defeated ab origine, with all the rights, charges, and incumbrances, attaching to it before the condition was broken.

Thus, if an estate were given to a married woman in fee, upon condition that in case she did not pay to B £1000 within five years, the donor might enter; if she do not pay the money, and entry is made, the donor becomes seised of his estate, as if such grant had never been made, and the wife's possession being thus defeated as if it had never commenced, there is no seisin upon which the husband can found a claim to curtesy.

But it is not so of a limitation; that has no retro

(a) 2 Bro. Curtesy, fo. 249 b. pl. 13.

her estate.

Not so when

spective operation or effect, it merely shifts the estate CURTESY. from one person to another, leaving the prior seisin When deundisturbed; and whenever an estate is given over feated by wife's evicto a stranger, whether expressed by the word con- tion from, or the deterdition or not, the disposition over upon non-com- mination of pliance with the terms of the gift by the first donee is a limitation; for since the donor or his representatives only can take advantage of a condition, it would be in their power to disappoint the disposition over, by refusing to enter for a breach, if it were not considered a limitation, according to which, when the estate of the first donee determines, the one next between limited commences, and the person intitled may and limitaenter upon the lands the instant that the failure tion. happens (a).

This introduces the consideration of a distinction, which has been alluded to as prevailing on the subject of curtesy, viz. that where, in its creation, the wife's estate of inheritance is not made determinable sooner than by its natural expiration, i. e. upon a failure of issue or heirs, the husband will be intitled to curtesy, although such estate expires upon the wife's death without leaving issue; but that where the fee is originally devised or limited in words importing a fee simple or fee tail, absolute or unconditional, but by subsequent words it is made determinable upon a particular event independently of its natural expiration, if, in that case, the event happen, the husband's curtesy will cease with the estate to which it is annexed; so that if a grant were made to the wife in fee simple or fee tail of lands, whilst, or so long as

the wife's estate deter.

mines by limitation, and why; and the

distinction

condition

(a) 2 Black. Com. 155.

CURTESY. A had heirs of his body, or until B attained twentyone, and then to B in fee; if A died without issue, or When defeated by if B attained twenty-one; then since the wife's estate wife's eviction from, or became determined by express limitation, the husband's curtesy would not, according to such distinction, be continued, as it would have been if the estate had been given to the wife and to her heirs, or to the heirs of her body without the annexation of either of the defeating or determining clauses, and the wife's interest had naturally ceased by her death without leaving issue.

the determination of her estate.

The above distinction, in regard to the two limitations, is subtle, and may be considered unsatisfactory. In instances of conditions, the reasons for denying the husband curtesy are clear, and have been before stated; but why the husband should not be intitled to curtesy equally upon a limitation to his wife in tail, determinable upon the event of A attaining twenty-one, and then to A in fee, as he would be if there had been no such determining event tacked to the wife's estate, and she died without leaving issue before him, is not so clear, upon reference to the principles of the decisions in other cases.

It is admitted that both limitations have defeating clauses attached to them; the one the contingency of A attaining twenty-one, the other an implied condition in favour of the donor and his heirs, upon non-alienation and failure of the issue of the donee; whence it might be urged with some plausibility, that as the latter of the two limitations is strictly conditional, the entry of the donor, upon failure of issue, would, as in other cases of conditions, defeat the curtesy of the husband; yet we have seen that in this instance the husband's right to curtesy has been

mination of

her estate.

settled and adjudged; but with respect to the former CURTESY. of the two limitations, since it is not conditional in the When delegal sense of the word, but a limitation, which does feated by wife's evicnot disturb the prior seisin of the wife, or the initiate tion from, or title of the husband to curtesy, it may be asked, the deterwhy should not the law in this instance, as in the other cases before mentioned, continue that scisin for the completion of the husband's title, as tenant by the curtesy? I know of no case containing an express decision to the contrary; and the inferential reasoning is not correct, that because the incidents or consequences flowing from the two limitations differ in some respects, they must, therefore, differ in all. These two limitations do indeed agree in one particu lar; they do not disturb the seisin which the wife had previous to the happening of the events which determined her estate; so that all the authorities applicable to show the continuance by the law of the wife's estate for the curtesy of the husband after her estate determined by a failure of issue, apply also to the other limitation above described. The cases which have been supposed to authorise the distinction between the different effects of the two limitations in regard to curtesy, do not appear to have been determined upon that point. It is true that in Boothby v. Vernon (a), before mentioned, the Court said, that wherever the wife's estate was to determine by express limitation or condition upon her death, curtesy did not attach, but that dictum must be considered in relation to the facts of the case, and then it would mean no more than this, that

(a) 9 Mod. 147, and stated infra, chap. 9, sect. 2, pl. 4.