Mr. Justioe "WalKek
delivered the opinion of the Court.
There was no disability existing to prevent Mehitabel and "W. P. Gilson, from instituting proceedings to recover their undivided interests in these premises, during the time they were the owners of the property. Nor did any exist to prevent plaintiff in error, after bis purchase, and before the seven years of actual possession, and payment of taxes, under claim and color of title, by Starkweather, had expired. He, it appeal’s, entered into, and held the possession of. the premises, under claim and color of title, for the period of limitation, and paid all taxes legally assessed for the period of seven years. This, without an actual, peaceable entry, payment of some portion of the taxes, or the institution of a suit to recover the possession, within that period of time, bars the right to recover the undivided half claimed through Mehitabel and "W. P. Gilson, by their conveyance to plaintiff in error.
It appears from the evidence, that Harriet W. Heed, and Caroline E. McAlister, who, as sisters of Hiram Gilson, inherited each one-sixth part of the premises, were, at the time of his death, femes covert, and had children of the marriage, and that they and their husbands are still living. That they joined with their husbands, in March, 1856, in conveying their interest in this land to Hibbard Porter, who, in June, 1860, for a nominal consideration expressed in the deed, conveyed it to plaintiff in error. It also appears, that at the time of the death of Hiram Gilson, his sister, Phila D. Porter, then the wife of Hibbard Porter, inherited one-sixth of the premises in controversy. That she há'd children bora alive by the marriage, and died in the year 1852, leaving children then and now surviving her.
At the death of Hiram Gilson, all these sisters were married, and had children then living, the issue of their several marriages. Their husbands thereby became invested with, or entitled to, a life estate in their wives’ shai’e of this property, by the curtesy initiate. This life estate of the husband, with the wife’s remainder, constitutes the entire estate in, or title to, the wife’s share of the property. This interest of the husband in his wife’s property, is a vested legal estate, subject to sale on execution, or by himself. He could have leased it, to the extent of the whole or any portion of the term. 2 Kent, 130; Thompson v. Green, 4 Ohio State R. 217; Schermerhorn v. Miller, 2 Cowen, 439. Nor can the estate of the wife take effect in her during the coverture. The estate of the husband is carved out of, and is a distinct estate from hers. He holds it as if he had acquired it by deed, and it is liable to all the incidents of any other freehold or life estate, until it is again merged into the fee simple.* If he were to convey or lease it, the title of the grantee or lessee could not be defeated by the husband and wife joining in a subsequent conveyance. They would thereby pass the wife’s remainder, but could not affect the present estate created by the husband’s previous conveyance. Until the death of the husband, his grantee would be entitled to hold the premises. Nor need the wife join with the husband to pass his life estate, nor in a suit to recover the possession for the husband, or for damages sustained by trespass.
He, then, having a separate estate from that of his wife, in the premises, with a present right of possession, and being at liberty to sue and recover the possession in his own right, for his own use, without the assent of the wife, no reason is perceived why his title may not be barred by the statute of limitations. It has never been questioned that a term of years, or life estate, might not be as effectually barred, as a fee simple or other estate. And no reason is perceived why the husband’s life estate in the lands of his wife should form an exception to the general rule. This is by no means a question of first impression, as it has been discussed and authoritatively determined in various States of the Union. Thompson v. Green, 4 Ohio State R. 216 ; Neal v. Robertson, 2 Dana, 86; Carter v. Cartrell, 16 Ark. R. 154. And in the case of Wright v. Plumptree, 3 Barn. & Ald. 474, it was held, that the husband who claims in the right of his wife, must make his entry or lose his action to avoid a fine, in five years after his right accrued. In support of the decision, Hulm v. Heylock, Cro. Car. 200, is referred to by the court as being directly in point. The principle decided in these cases, is precisely the same as that involved in the case under consideration.
The bar of the statute against a recovery by the husband, cannot be avoided by the institution of a suit by husband, and wife. The wife’s interest is not a present, but a future estate, dependent upon the death of the husband. It is true, that by the operation of the statute, the husband may have lost his estate in the lands, but it does not therefore follow, that the wife has become vested with his estate, or that it has merged in the fee, and created a present estate in the wife. She is unable to sue alone during the coverture; and if she join with the husband, his right is barred by the statute; if she can recover at all, it must be jointly with him; and when his right is defeated, there can be no remedy. This view of the case seems to have -been almost conceded in the argument. This life estate, like any other present estate, capable of being reduced to possession by the owner, not under disability, or within the savings of the statute, is subject to, and governed by, its provisions. The wife’s estate is saved from the bar of the statute, but cannot have effect during the coverture. The recovery, then, by the husband and wife being barred, their grantee is in the same condition as though the estate were held by them. The purchasers succeeded to their rights precisely as they existed at the time the conveyance was executed. Though, after the death of the husband, the purchaser may no doubt sue for and recover the fee, as it was not barred — but only the life estate. Gregg v. Tesson, 1 Black, 150.
It is, however, insisted, that the fourth section of the conveyance act (Rev. Stat. 1845,103; Scates’ Comp. 959) controls the operation of the statute of limitations. ’ That section provides, that persons claiming title to lands', although out of possession, and notwithstanding an adverse possession, may sell, convey and transfer their interest in the same, as completely as if they were in actual possession of the lands; and the grantee shall have the same right of action for its recovery, and in all respects derive all the benefits and advantages from the conveyance, as if the grantor had been in actual possession at the time of executing the conve}rance. It is urged, that this provision, where a conveyance is made by a person out of possession,- arrests the operation of the statute of limitations, precisely as though the grantor had acquired the possession at the time the deed was executed; — that such a conveyance destroys the operation of the statute up to the time of the execution of the deed, and the full period of the statutory limit must subsequently elapse, coupled with its other requirements, before it can form a bar to a recovery.
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Mr. Justioe "WalKek
delivered the opinion of the Court.
There was no disability existing to prevent Mehitabel and "W. P. Gilson, from instituting proceedings to recover their undivided interests in these premises, during the time they were the owners of the property. Nor did any exist to prevent plaintiff in error, after bis purchase, and before the seven years of actual possession, and payment of taxes, under claim and color of title, by Starkweather, had expired. He, it appeal’s, entered into, and held the possession of. the premises, under claim and color of title, for the period of limitation, and paid all taxes legally assessed for the period of seven years. This, without an actual, peaceable entry, payment of some portion of the taxes, or the institution of a suit to recover the possession, within that period of time, bars the right to recover the undivided half claimed through Mehitabel and "W. P. Gilson, by their conveyance to plaintiff in error.
It appears from the evidence, that Harriet W. Heed, and Caroline E. McAlister, who, as sisters of Hiram Gilson, inherited each one-sixth part of the premises, were, at the time of his death, femes covert, and had children of the marriage, and that they and their husbands are still living. That they joined with their husbands, in March, 1856, in conveying their interest in this land to Hibbard Porter, who, in June, 1860, for a nominal consideration expressed in the deed, conveyed it to plaintiff in error. It also appears, that at the time of the death of Hiram Gilson, his sister, Phila D. Porter, then the wife of Hibbard Porter, inherited one-sixth of the premises in controversy. That she há'd children bora alive by the marriage, and died in the year 1852, leaving children then and now surviving her.
At the death of Hiram Gilson, all these sisters were married, and had children then living, the issue of their several marriages. Their husbands thereby became invested with, or entitled to, a life estate in their wives’ shai’e of this property, by the curtesy initiate. This life estate of the husband, with the wife’s remainder, constitutes the entire estate in, or title to, the wife’s share of the property. This interest of the husband in his wife’s property, is a vested legal estate, subject to sale on execution, or by himself. He could have leased it, to the extent of the whole or any portion of the term. 2 Kent, 130; Thompson v. Green, 4 Ohio State R. 217; Schermerhorn v. Miller, 2 Cowen, 439. Nor can the estate of the wife take effect in her during the coverture. The estate of the husband is carved out of, and is a distinct estate from hers. He holds it as if he had acquired it by deed, and it is liable to all the incidents of any other freehold or life estate, until it is again merged into the fee simple.* If he were to convey or lease it, the title of the grantee or lessee could not be defeated by the husband and wife joining in a subsequent conveyance. They would thereby pass the wife’s remainder, but could not affect the present estate created by the husband’s previous conveyance. Until the death of the husband, his grantee would be entitled to hold the premises. Nor need the wife join with the husband to pass his life estate, nor in a suit to recover the possession for the husband, or for damages sustained by trespass.
He, then, having a separate estate from that of his wife, in the premises, with a present right of possession, and being at liberty to sue and recover the possession in his own right, for his own use, without the assent of the wife, no reason is perceived why his title may not be barred by the statute of limitations. It has never been questioned that a term of years, or life estate, might not be as effectually barred, as a fee simple or other estate. And no reason is perceived why the husband’s life estate in the lands of his wife should form an exception to the general rule. This is by no means a question of first impression, as it has been discussed and authoritatively determined in various States of the Union. Thompson v. Green, 4 Ohio State R. 216 ; Neal v. Robertson, 2 Dana, 86; Carter v. Cartrell, 16 Ark. R. 154. And in the case of Wright v. Plumptree, 3 Barn. & Ald. 474, it was held, that the husband who claims in the right of his wife, must make his entry or lose his action to avoid a fine, in five years after his right accrued. In support of the decision, Hulm v. Heylock, Cro. Car. 200, is referred to by the court as being directly in point. The principle decided in these cases, is precisely the same as that involved in the case under consideration.
The bar of the statute against a recovery by the husband, cannot be avoided by the institution of a suit by husband, and wife. The wife’s interest is not a present, but a future estate, dependent upon the death of the husband. It is true, that by the operation of the statute, the husband may have lost his estate in the lands, but it does not therefore follow, that the wife has become vested with his estate, or that it has merged in the fee, and created a present estate in the wife. She is unable to sue alone during the coverture; and if she join with the husband, his right is barred by the statute; if she can recover at all, it must be jointly with him; and when his right is defeated, there can be no remedy. This view of the case seems to have -been almost conceded in the argument. This life estate, like any other present estate, capable of being reduced to possession by the owner, not under disability, or within the savings of the statute, is subject to, and governed by, its provisions. The wife’s estate is saved from the bar of the statute, but cannot have effect during the coverture. The recovery, then, by the husband and wife being barred, their grantee is in the same condition as though the estate were held by them. The purchasers succeeded to their rights precisely as they existed at the time the conveyance was executed. Though, after the death of the husband, the purchaser may no doubt sue for and recover the fee, as it was not barred — but only the life estate. Gregg v. Tesson, 1 Black, 150.
It is, however, insisted, that the fourth section of the conveyance act (Rev. Stat. 1845,103; Scates’ Comp. 959) controls the operation of the statute of limitations. ’ That section provides, that persons claiming title to lands', although out of possession, and notwithstanding an adverse possession, may sell, convey and transfer their interest in the same, as completely as if they were in actual possession of the lands; and the grantee shall have the same right of action for its recovery, and in all respects derive all the benefits and advantages from the conveyance, as if the grantor had been in actual possession at the time of executing the conve}rance. It is urged, that this provision, where a conveyance is made by a person out of possession,- arrests the operation of the statute of limitations, precisely as though the grantor had acquired the possession at the time the deed was executed; — that such a conveyance destroys the operation of the statute up to the time of the execution of the deed, and the full period of the statutory limit must subsequently elapse, coupled with its other requirements, before it can form a bar to a recovery.
The first section of the conveyance act, dispenses with livery of seizin, as a requisite to the validity of a conveyance of real estate. At the common law, livery of seizin was indispensable to the complete investiture of title. To render livery of seizin availing, it was necessary that the grantor should be in possession of premises. This provision, then, was to enable parties to transmit real estate by deed, although not in possession, and unable to make livery of seizin. It rendered deeds of conveyances for vacant and unoccupied lands valid, although livery of seizin was not made. It was also a rule of the common law, that all conveyances of real estate, in adverse possession, were void, because the grantor being out of possession, was. unable to invest the grantee, and also for the reason that the grantor was held to only have a right of action, which was not assignable at the common law. 4 Kent, 443 ; Jackson v. Dumont, 9 Johns. R. 55; Fite v. Doe & Dun, 1 Bl. 127. By various acts of parliament in Great Britain, and the legislatures of various States of the Union, this portion of the common la’w has been enacted under the title of champerty and maintenance acts, with pehalties superadded. These sections were doubtless enacted with a view to avoid the effects and consequences of the common law, and the ancient champerty and maintenance laws, which would otherwise have been in force in this State. This seems to have been the reason that induced their adoption, and such is the full scope of their operation.
They were not adopted with reference to the statutes of limitation. And to give to the fourth sectiou the operation claimed, would be to render these statutes almost if not entirely inoperative. Under such a construction, the holder of title out of possession, would only have to make a conveyance before the bar was complete, to arrest the statute, and require it to again commence and run its full period, to form a bar. And his grantee would have the same right, by similar means, of producing the same result, and this might be continued perpetually. This manifestly was not the design of the General Assembly, in adopting these provisions. And unless the language employed was such as to preclude every other construction, we cannot defeat the operation of all our statutes of limitation, by adopting that contended for by plaintiff in error.
The design of the General Assembly, no doubt, was simply to invest the purchaser of premises, and those in adverse possession, with all the rights of the grantor, precisely as he then held them.. Any other construction would virtually repeal the limitation laws, in reference to real estate, and be fraught with consequences never contemplated or intended by the General Assembly. The plaintiff having only acquired the rights of his grantors as they existed at the time he received his deed, and the statutory period of limitation having run against him and his grantors, he has no right to recover.
The judgment of the court below is therefore affirmed.
Judgment affirmed.
Mr. Chief Justice CatoN, concurred. Mr. Justice Bkeese, dissented.