husband's release, &c. have a writ of entry in casu consimili by the statute CURTESY. of Westminster the second (a). The alienations, When dehowever, that create such forfeitures, must be under- feated by stood of such conveyances at common law, which, sole acts. from their natures, displace and divest the estates in remainder or reversion as feoffments, &c.; for if the Contra if by conveyance of a tenant by the curtesy were by lease lease and and release, then, since nothing could pass by those deeds but what the tenant had to convey, no forfeiture would be incurred (b). The husband's living His adultery in adultery will not be a forfeiture of his curtesy; tenants by the curtesy and dower differing in this respect, as it will appear in a subsequent chapter (c). The reason is, that by the statute of Westminster the second (d), the wife is deprived of dower, whereas there is no law by which the husband incurs a forfeiture of his title to curtesy from such misconduct on his part (e). no bar. But the husband's attainder of treason, or other Contra if he capital felony, will disable him from claiming curtesy (f). There is little to be found in the books respecting the effects of a charter of pardon upon the title of the husband to curtesy; and the following observations upon the subject are founded on general principles : Suppose the offence, of which the husband is attainted, to be high treason; as the King alone is interested in the forfeiture, he may remit it (g), and (6) 7 Term Rep. 277; and see (a) Chap. 24. 2 Inst. 309. chap. 2, sect. 1. (c) Chap. 11, sect. 3. 34. (e) Sidney v. Sidney, 3 P. Will. 269–276. (g) 2 Black, Com. 254. (d) 13 Edw. 1, cap. (f) Co. Litt. 391. commit treason, &c. Effect of pardon in cases of treason, &c. CURTESY. When defeated by husband's sole acts. Effect of pardon. On the title of the Lord by escheat. restore the interest that the husband had in the estate; but the pardon of the King does not remove corruption of blood that preceded such pardon. It seems, however, that the pardon's effect is different when the attainted person is seised of the estate, and when he is not the owner, but has or may acquire an interest in it in respect of the owner's seisin. In the first case, it would appear that the pardon not removing the preceding corruption of blood, that corruption estops the claim of any person to an interest to be derived from the attainted person in respect of his seisin prior to the pardon, a doctrine arising out of the feodal tenures, and founded upon the relation between lord and tenant (a). But there being no such tenure in the second case, it seems that the attainder is to be considered a personal disability only, a pardon for which, by removing such disability, places the party in the same situation in regard to his rights as if it had not occurred (b). Thus, in the present case, the estate being the inheritance of the wife, it would seem that whether the husband had heritable issue before his attainder, or not till after his pardon, he would be equally intitled to curtesy in all estates of inheritance of which his wife was seised during the marriage. When the attainder is for a capital felony, in which the crown is not solely interested, but the Lord by escheat acquires a title, the pardon of the King can only waive the forfeiture of the estate for a year and a day, during which period he was (a) 1 Leon. 3. Dyer, 140 b. (b) 15 East, 463. 13 Rep. 23. Co. Litt. 33; and see infra, chap. 11, sect. 3, pl. 2 and 3. intitled to hold it; after that, the right of the Lord CURTESY. commenced (a); but this right depends upon the When deperiod when heritable issue were born to the husband. feated by husband's Accordingly, if the offence were murder, of which sole acts. the husband was attainted, and he had issue heritable to his wife's estate at the period of his attaint, the Lord of whom the lands are holden has an interest by escheat, which, it is presumed, cannot be affected by the pardon; for after the birth of the issue the husband, as we have seen, became sole tenant to the Lord, and by the attainder he forfeited his tenancy, for which the Lord might enter and eject him; it is, therefore, conceived, that under those circumstances the royal pardon cannot, by the removal of the attainder by the grant of such pardon, place the husband in a condition to claim curtesy of the estate, to the prejudice of the Lord by escheat (b). If, however, there were no heritable issue at or prior to the attainder, the Lord's title to escheat would not arise; because until the husband have such issue, he is not sole tenant to the Lord; he cannot, therefore, escheat the tenancy pro defectu tenentis, for the wife is the tenant, and she with her husband must do homage until issue be born (c). It appears, then, that the Lord, by escheat, has no immediate title to the estate, upon the husband's attainder for murder, &c. under the above circumstances. But the King, as we have seen, would, in such a case, be intitled to the profits of the land during the marriage (d), which he may remit by his pardon for that period. (a) See 2 Black. Com. 251, for the distinction between Forfeiture and Escheat. (b) See Co. Litt. 351. (c) 2 Black. (d) Supra, p. 3. Com. 126. CURTESY. When defeated by wife's sole acts. By her attainder of treason. Distinction to be made in regard to the time when the issue were born. By attainder of other felonies. Stat. 54 Geo. 3. Its effects upon the title of Lord by escheat. The last subject for consideration is— 4. By what acts the wife alone may defeat her husband's title to curtesy. Her power over that right, in exercising her privilege of election between her estate in tail and the benefits given to her by a will, disposing of that estate, has been noticed (a). The wife's attainder of treason may or may not affect her husband's title to curtesy. Accordingly, if the attainder happen before the birth of issue, and the wife die, leaving issue, her husband will be barred of his curtesy. But if there had been heritable issue at the time of the attainder, it would seem, that such attainder would not devest the husband's estate of freehold, acquired by the birth of issue, expectant upon his wife's death (b). With respect to other capital felonies committed by the wife, in which the Lord by escheat is interested, the effect of her attainder upon her husband's right to curtesy, depends upon the like principles as those before mentioned. But it is proper to be here noticed, that by a recent Act of Parliament, it is declared, that no attainder for felony (except for the crimes of high treason, petit treason, or murder, or of abetting, procuring, or counselling the same) shall extend to the disinheriting of any heir, nor to the prejudice of the rights of any person, other than the offender, during his natural life only (c). Hence, it seems that the wife's attainder of any felony, except those mentioned in the statute, will not prejudice her husband's title to (a) Supra, p. 27. fo. 249 b. pl. 3. (b) 1 Hale's Pl. Co. 359. 2 Bro. "Curtesy," (c) 54 Geo. 3, cap. 145. curtesy: and it is to be remarked upon the act, as CURTESY. to its effects on the title by escheat, that by saving When dethe land to the heir it prevents a corruption of blood, feated by the wife's sole and consequently an escheat to the lord, whose right acts. is only pro defectu tenentis occasioned by that corruption (a). at Its effects upon the title of lord by escheat. attainder of murder since the statute, considered. After these remarks, we shall consider the tainder of the wife for a felony excepted out of the statute, with regard to its effects upon her husband's title to curtesy. Suppose, then, the wife to be attainted of murder Case of wife's after the birth of heritable issue; her husband's estate by the curtesy after her death will not be defeated; for the tenancy continues notwithstanding his wife's attainder, he being sole tenant, and competent alone to perform all the services incident to the tenure. But if there were no heritable issue previously to the attainder, the husband, although issue be subsequently born, will not be intitled to curtesy, because that issue cannot by possibility inherit the estate, on account of the attainder, so that the husband's title never arose (b). The only point remaining to be considered is the effect upon the title to curtesy of a charter of pardon obtained by the wife; and it seems a consequence from what has been said, that a question pardon upon upon this subject can only arise where the husband her hushad no heritable issue at the time of his wife's to curtesy of attainder. Effect of her band's title estates which she had at If, then, whilst the husband has no such issue, the time of his wife be attainted of any of the offences which the attainder and those she acquired afterwards. (a) 4 Hawk. Pl. Co. 486. (b) Co. Litt. 40. VOL. I. E |