The question is, can there be a tenancy by the curtesy in a reversion expectant upon a prior estate for life, that estate having extended beyond the life of the wife owning the reversion ?
The answer in the negative, given by a majority of the court, is undoubtedly the law in most, if not in all jurisdictions other than our own.
In Bush v. Bradley, 4 Day, 298, Josiah Woodhouse died, seised of the premises in question, in 1766. His son Robert inherited and occupied, and died seised iu 1775. His only child, Mary, born in 1774, inherited; she intermarried with James Goldear in 1794, before she arrived at the age of twenty-one years. She continued a feme covert until her death in November, 1807, leaving her husband James Gold-ear living, having had children by him. These died before their mother. If they had survived her they could have inherited the premises. ' James Goldear had never been in actual possession of the premises. His wife had not been in possession since her intermarriage with him, for this reason, that the defendant, before 1788, more than twenty years prior to the commencement of the action, having purchased the premises for a valuable consideration, went into possession of the same, and from that time to the time of trial had held possession adversely to all others. The plaintiffs were the heirs at law of a sister of Josiah Woodhouse, the original owner. The defendant objected to a recovery on the ground that Goldear, being now living, was tenant by the curtesy of the premises, although neither he nor his wife had ever been in actual possession during coverture; and the court directed the jury to find a verdict for the defendant on that ground solely. The plaintiffs moved for a new trial. The court said substantially as follows:—
“ As to the point respecting the curtesy, there is no question but what there must have been by the English law an actual seisin of the wife of the premises during the coverture, to entitle the husband to the curtesy. It is said that unnecessary departures from the common law of England are not to be favored ; that by such means everything is rendered un*193certain. I am fully of opinion that few maxims of our law are more important than that of stare decisis; but it must be acknowledged by all that our system of law respecting real property is, in many instances, very different from the English system. We have in some instances, when we have adopted the principles of the English law, extended them to cases which, by the adjudications of the English courts, have not been supposed to fall within the governing principle ; in others we have adopted entirely different principles; and in all such cases where this has been done, which are pari ratione with those already settled, if we reject our own and adopt theirs, we shall mar the symmetry of our law; and the preservation of symmetry in our system I also view as a most important consideration. In England it is not sufficient that a man is proprietor of real property, and has a perfect right to it when he dies, to cause it to descend to his heirs at law. No, he must be actually seised thereof. The maxim is seising facit stipitem; and the person that is heir to that property will be heir to him that was last seised. If A should die, who owns Whiteacre, which descended to him from his father, but has not been actually seised, leaving a brother of the half-blood, B, and a sister, C, of the whole blood, this estate cannot descend to 0, his sister and heir; for B, being of the half-blood, cannot by their law inherit to his brother; but yet the same will descend to B, who is heir to his father, who was the last seised. Had A been seised, the estate would have descended to O. The maxim of seisina facit stipitem is an unyielding maxim of their law, and what governs the descent of property. But this is not our law. It is settled that it shall descend to the heirs of him who owns the property, whether he was seised or not. Seisin directs the descent with them; ownership with us.
“ By the English law a devise will not operate upon real property of which the devisor is disseised. Seisin is an indispensable requisite to give effect to the devise. A devise, by our law, is good although a man is disseised. Seisin is necessary in their law and nothing but ownership in our law. We have always considered ownership of real property *194sufficient to maintain an action of trespass against every intruder; but by tbe English law actual possession by entry is necessary. We have always considered ownership as giving a right to possession of real property, as much so as ownership of personal property. Ownership in the one case draws after it the possession as much as in the other case ; and whenever a right of possession is lost, all title and ownership are lost. So the statute of limitations respecting lands has always been construed. The statute, in the words of it, does not take from the original proprietor his title; it only tolls his right of entry; and yet this statute has been always considered as barring all claims of title, whilst the same words in tbe English statute have been considered, not as having any effect on the title, but only on the right of entry, and the lands may be recovered by a form of proceeding proper for such a ease. Tbe English law distinguishes betwixt a right of possession and a right of property; but our law does not. Wherever there is a right to real property, there is of course a right of possession, and the statute which takes away the right of possession, takes away the right of property; and this is the reason that this statute has received a construction altogether different from the construction given to the English statute; and this is perfectly analogous to every other case of real property in this state. Wherever you find a right of property you find a right of possession, and all the consequences of ownership attending it that you find in England where there is an actual seisin; and, on the other hand, where there is no right of possession there is no ownership. So in this case, Mary Goldear had title to the land, and though not actually seised, her husband acquired the same rights on her death as if she had been seised. Since seisin is not necessary in case of descent to the heirs, neither is necessary to pass lands by a devise, why should it be thought necessary to the husband’s title by the curtesy ?
“ The decision of the court in this case is no departure from fixed rules and precedents. The departure from the English rule respecting the efficacy of seisin has long since *195been departed from ; and to adhere to it in this ease would mar the symmetry of our law.”
In Kline v. Beebe, 6 Conn., 494, it is said in the marginal note that “ in this state the husband may be tenant by the curtesy of land to which the wife had title, but of which she was not actually seised, during the coverture; ” citing Bush v. Bradley, 4 Day, 298.
In 4 Kent’s Commentaries, (5th ed.), 80, it is said as follows : “ The rule has been carried still further in this country ; and in one state, where the title by curtesy is in other respects as in England, it is decided that it was sufficient for the claim of curtesy that the wife had title to the land, though she was not actually seised nor deemed to be so. The law of curtesy in Connecticut is made to symmetrize with other parts of their system, and in that state ownership without seisin is sufficient to govern the descent or devise of real estate ; ” citing Bush v. Bradley, 4 Day, 298, and Kline v. Beebe, 6 Conn., 494.
A vested remainder expectant upon a life estate is a fixed present right of property, alienable, devisable, descendible ; indeed it has all of the incidents of any other kind of present interest in real property. Ownership of, that is, the present right of property in, the reversion expectant upon a life estate, stands upon a plane with ownership of the fee. And upon the cited precedeifts in this court, ownership is perfect in utter disregard of the question as to possession. Ownership has displaced and stands for the actual seisin, the investiture by turf and twig of the common law. It matters not that the rightful owner in fee is kept from possession by a tort-feasor, or by rightful possession by the life-tenant. In each case alike there is a valuable vested present right of property, susceptible of ownership in the highest sense. To such ownership, in both cases, tenancy by the curtesy is legally incident equally.
In this opinion Carpenter, J., concurred.