The opinion of the court was delivered by
Redeield, J.
It is first to be inquired, whether the county court committed an error in admitting parol proof of the contents of the deed from Zalmon Wheaton to defendant, Lydia Stearns. Whether the existence of the deed should have been first proved, and then notice to produce the original shown, in order to lay the foundation for secondary evidence of the contents of the deed, is not now very material; as it is a mere question as to the modus operandi. Most unquestionably, this would have been more in accordance with the received forms of proceeding, and such, no doubt, was the order of proceeding in fact, in the court below, but in stating the case, that order is reversed, and the notices to produce the deed are shown before the existence of the deed itself is proved. This course might sometimes happen from its being conceded on all hands, that some such instrument did once exist. But, in either case, as no question, as to the order of introducing the evidence in the court below, was made, and the existence, as well as the contents of the deed, was shown, it only remains to determine whether, from the whole case, such proof was properly admitted.
The deed was executed to the wife. It is presumed to continue in her possession, or that of her husband, unless the contrary be shown. As it is only optional with the party, whether he will record his deed, we cannot presume any deed to have been recorded. If not recorded, it could not be proved by an office copy from the town clerk, nor would it be in the plaintiff’s power to produce any copy of the deed. He must, of course, resort to mere oral evidence of the contents, unless he could procure the original deed. This he should do, if in his power. [335]*335He must make all reasonable efforts to procure it. As he has not the custody of the paper, nor power to compel the party, in whose possession it is, to surrender it, he can only request them so to do, and this he must do, and in reasonable time, to permit them to produce it, if they see fit. If they refuse to produce the original, he may then resort to the best evidence in his power, which, in this case, it has been seen, was produced, i. e. oral evidence of the contents of the instrument. The only remaining doubt, then, rests upon the character of the request or notice to produce the deed.
We think this was sufficient. The party, wishing to prove a paper in the possession of his antagonist, cannot be required to follow him to the world’s end, to request the production of the original. All that is or can be required, is reasonable notice. This, we think, was given in the present case. If the party was not within the State, the notice to the attorney was all that could be required.
The freehold title of the wife being made out, and the plaintiff’s levy being admitted to be formal, and it being also admitted, that the defendants had issue born alive, it only remains to inquire whether the defendant, John Stearns, had such an estate in the land, as was liable to be levied upon by his creditors.
The statute provides that, “ any estate, held by the debtor in his own right in fee, or for his own life, or the life of another, paying no rents therefor,” shall be subject to be levied upon.
We see no difficulty in considering this an estate, which the debtor held in his own right. The title was, indeed, derived through the right of his wife, but, by virtue of the marriage, he, as husband, acquires certain rights, among which, the use of the freehold estate of inheritance of the wife, during the coverture, is one. After issue born alive, this estate is enlarged and ex-tendsj not only during the coverture, but till the death of the husband, except in one event, which will be named hereafter. This, in England, after the death of the wife, was denominated an estate by the curtesy, but is strictly an estate, which the husband holds in his own right, whether before or after the death of the wife. He may bring trespass or ejectment in his own name, for any injury to the usufruct during the continuance of his estate.
'The next inquiry is, whether this is m estate for the life of the debtor. It is undoubtedly true, that this estate might hs [336]*336determined by a divorce, a vinculo, before the death of either husband or wife. But this is a contingency of so remote expectation, as not to enter into the ordinary calculations of the duration of the relation of married life. It is one of those extreme cases, which, like earthquakes and tempests in the natural world, or like public executions in the history of individual existence, do, indeed, sometimes occur, but which no one feels bound to expect or to provide against.
This, then, is an estate for the life of the debtor, depending upon this remote contingency, which no honest or prudent man could anticipate in his own case, and which the law cannot regard until it occurs. And should the contingency happen, and thus the estate of the levying creditor be determined, it is no detriment to the debtor, nor has he any just cause of complaint. Iiis debt is paid, and the loss and risk, if any, fall upon the creditor.
But if this were a contingency still less remote, it would not change the character of the estate.
An estate to a woman durante viduitate, or dum sola, or to a man, so long as he shall dwell in a particular house, are all estates for life, although each particular class of those .estates, is liable to be determined any hour, and that during the life time of the person, by the term of whose existence the estate is otherwise to be measured. 1 Cruise’s Digest, 77. 1 Institutes, 42, a.
This mode of levy upon the entire estate of the debtor, by appraisal to the extent of the metes and bounds, by which the levy is described, is the only mode ever practised in this State,' and the only one, we think, which is consistent with the statute. In some of the States, the creditors who levies upon tlie husband’s estate, in the lands of the wife, is put by the officer in the receipt of the yearly issues, until the debt shall be paid. Such has not been the construction given to our statute upon this subject.
The cases, relied upon by the counsel for the defendant, do not seem to impugn the general doctrine here established.
In the case of Barber v. Root, 10 Mass. Rep. 260, the levy upon the estate of the wife was, indeed, in the manner last named, but was a levy under a statute differently expressed from our statute upon the subject, and it was doubted whether the levy was good under the Massachusetts statute, and the case [337]*337was finally decided upon the point, that the divorce divested the estate of the husband in the lands of the wife. Upon this question there can be no doubt.
The case of Robb&wife v. Perley, 1 Greenleafs Rep. 6. is not in point, to show either the mode of the levy or the estate liable to be levied upon. The form of the levy was-the same as in the present case, and the estate levied upon-, was the freehold of the wife, in an uncultivated state.
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The opinion of the court was delivered by
Redeield, J.
It is first to be inquired, whether the county court committed an error in admitting parol proof of the contents of the deed from Zalmon Wheaton to defendant, Lydia Stearns. Whether the existence of the deed should have been first proved, and then notice to produce the original shown, in order to lay the foundation for secondary evidence of the contents of the deed, is not now very material; as it is a mere question as to the modus operandi. Most unquestionably, this would have been more in accordance with the received forms of proceeding, and such, no doubt, was the order of proceeding in fact, in the court below, but in stating the case, that order is reversed, and the notices to produce the deed are shown before the existence of the deed itself is proved. This course might sometimes happen from its being conceded on all hands, that some such instrument did once exist. But, in either case, as no question, as to the order of introducing the evidence in the court below, was made, and the existence, as well as the contents of the deed, was shown, it only remains to determine whether, from the whole case, such proof was properly admitted.
The deed was executed to the wife. It is presumed to continue in her possession, or that of her husband, unless the contrary be shown. As it is only optional with the party, whether he will record his deed, we cannot presume any deed to have been recorded. If not recorded, it could not be proved by an office copy from the town clerk, nor would it be in the plaintiff’s power to produce any copy of the deed. He must, of course, resort to mere oral evidence of the contents, unless he could procure the original deed. This he should do, if in his power. [335]*335He must make all reasonable efforts to procure it. As he has not the custody of the paper, nor power to compel the party, in whose possession it is, to surrender it, he can only request them so to do, and this he must do, and in reasonable time, to permit them to produce it, if they see fit. If they refuse to produce the original, he may then resort to the best evidence in his power, which, in this case, it has been seen, was produced, i. e. oral evidence of the contents of the instrument. The only remaining doubt, then, rests upon the character of the request or notice to produce the deed.
We think this was sufficient. The party, wishing to prove a paper in the possession of his antagonist, cannot be required to follow him to the world’s end, to request the production of the original. All that is or can be required, is reasonable notice. This, we think, was given in the present case. If the party was not within the State, the notice to the attorney was all that could be required.
The freehold title of the wife being made out, and the plaintiff’s levy being admitted to be formal, and it being also admitted, that the defendants had issue born alive, it only remains to inquire whether the defendant, John Stearns, had such an estate in the land, as was liable to be levied upon by his creditors.
The statute provides that, “ any estate, held by the debtor in his own right in fee, or for his own life, or the life of another, paying no rents therefor,” shall be subject to be levied upon.
We see no difficulty in considering this an estate, which the debtor held in his own right. The title was, indeed, derived through the right of his wife, but, by virtue of the marriage, he, as husband, acquires certain rights, among which, the use of the freehold estate of inheritance of the wife, during the coverture, is one. After issue born alive, this estate is enlarged and ex-tendsj not only during the coverture, but till the death of the husband, except in one event, which will be named hereafter. This, in England, after the death of the wife, was denominated an estate by the curtesy, but is strictly an estate, which the husband holds in his own right, whether before or after the death of the wife. He may bring trespass or ejectment in his own name, for any injury to the usufruct during the continuance of his estate.
'The next inquiry is, whether this is m estate for the life of the debtor. It is undoubtedly true, that this estate might hs [336]*336determined by a divorce, a vinculo, before the death of either husband or wife. But this is a contingency of so remote expectation, as not to enter into the ordinary calculations of the duration of the relation of married life. It is one of those extreme cases, which, like earthquakes and tempests in the natural world, or like public executions in the history of individual existence, do, indeed, sometimes occur, but which no one feels bound to expect or to provide against.
This, then, is an estate for the life of the debtor, depending upon this remote contingency, which no honest or prudent man could anticipate in his own case, and which the law cannot regard until it occurs. And should the contingency happen, and thus the estate of the levying creditor be determined, it is no detriment to the debtor, nor has he any just cause of complaint. Iiis debt is paid, and the loss and risk, if any, fall upon the creditor.
But if this were a contingency still less remote, it would not change the character of the estate.
An estate to a woman durante viduitate, or dum sola, or to a man, so long as he shall dwell in a particular house, are all estates for life, although each particular class of those .estates, is liable to be determined any hour, and that during the life time of the person, by the term of whose existence the estate is otherwise to be measured. 1 Cruise’s Digest, 77. 1 Institutes, 42, a.
This mode of levy upon the entire estate of the debtor, by appraisal to the extent of the metes and bounds, by which the levy is described, is the only mode ever practised in this State,' and the only one, we think, which is consistent with the statute. In some of the States, the creditors who levies upon tlie husband’s estate, in the lands of the wife, is put by the officer in the receipt of the yearly issues, until the debt shall be paid. Such has not been the construction given to our statute upon this subject.
The cases, relied upon by the counsel for the defendant, do not seem to impugn the general doctrine here established.
In the case of Barber v. Root, 10 Mass. Rep. 260, the levy upon the estate of the wife was, indeed, in the manner last named, but was a levy under a statute differently expressed from our statute upon the subject, and it was doubted whether the levy was good under the Massachusetts statute, and the case [337]*337was finally decided upon the point, that the divorce divested the estate of the husband in the lands of the wife. Upon this question there can be no doubt.
The case of Robb&wife v. Perley, 1 Greenleafs Rep. 6. is not in point, to show either the mode of the levy or the estate liable to be levied upon. The form of the levy was-the same as in the present case, and the estate levied upon-, was the freehold of the wife, in an uncultivated state. The court held the levying creditor liable for waste, on the ground that the estate of inheritance was in the wife, and for any injury to that, she, to>gether with her husband, might sustain an action; and as the levy in that case, could at most, only extend to the usufruct, it could not protect defendant, as there could be- no use of wild lands, without first committing waste, which the creditor has no right to do.
The result is, that the levy upon the entire estate, to the extent of the metes and bounds, must be esteemed the only correct mode here. And we cannot doubt that the husband’s interest in the wife’s estate of inheritance,, after issue, is such, that his creditors may levy upon it.
But upon the question of the joinder, of the wife, we entertain no doubt. The wife could not be guilty of a disseizin for any act done in company with or by the presumed coercion or direction of the husband. The act would be that of the husband and not of the wife..
Had this been a suit where the title of the wife, and her rights were to be adjudicated, it might be very proper to join her in the suit.
But plaintiffs levy could only reach the estate of the husband. The estate of the wife is not in controversy. There is no more reason why the wife should be joined in this suit, because she remained on the premises after the expiration of the time given the debtor by law to redeem, than there would be in joining the children or servants of the husband.
And as the plaintiff has alleged a disseizin by husband and wife jointly, there may be some propriety in rejecting proof of the disseizin by the husband alone. If a plaintiff allege a trespass committed by defendant’s cattle, he cannot be permitted' to prove a trespass committed by the defendant in person.
The declaration, in this case, of a disseizin committed by [338]*338husband and wife jointly, is, in the language of the law, declaring upon the act of the wife. For if it be the act of the husband alone, the wife could not be joined. But as this is merely a question of variance, the plaintiff is permitted to amend by striking out the name of the wife, upon terms.
It is now alleged in argument, by the defendant, that there has been no disseizin by the husband, but that by operation of. law, after the expiration of the time given to redeem, the seizin being cast upon the creditor, the mere fact of the debtor continuing in possession does not amount to a disseizin, but is a holding by legal permission of, or in subordination to the title of the plaintiff. It is true, the.debtor is made liable for rents during the term given him for redemption, but if he continues to hold and occupy the premises after the term has-expired, he is- a wrong doer, and liable in ejectment.
The judgment of the County Court is affirmed.