Ejectment for a tract of land in Shelby county. Plea, not guilty.
The following are the material facts. A widow being in possession of a tract of land as her dower, married one Brown. Afterwards, a judgment awarding execution against the goods and lands of Brown, was rendered by the Circuit Court, on the transcript of a judgment of a justice of the peace. On the same day on which the execution was awarded, Mrs. Brown obtained a divorce against Brown a vinculo matrimonii. • The land assigned to Mrs. Brown as her dower before she married Brown, was, after the divorce, sold on the execution awarded against Brown. The purchasers under the execution are the lessors of the plaintiff; and Mrs. Brown and her tenant are the defendants.
The Circuit Court, to which the cause was submitted, gave judgment for the defendants.
•I We think this decision is right. Mrs. Brown, previously to her marriage with Brown, had an estate for life in the land. The marriage gave Brown an estate in it which was. to continue during the coverture. It was an estate which he might 'sell, and which was subject' to any judgments rendered against him during its existence. 2 Kent’s Comm. 134. The lessors of the plaintiff, in the case before us, took, by their purchase, the same estate that the execution-defendant had; that is, a right to the enjoyment of the premises during the existence of the marriage.
It is said by Colee, that if a husband make a feoffment in fee of the lands which he holdeth in the right of his wife, and after they are divorced causa prcecontractus, yet the woman may enter within the purview of the statute of Henry the 8th, an(I is not driven to her writ of cui ante divoriium, as she was at the common law. Coke on Litt. 326. This shows, that if the wife were out of possession, and there had been a sale and conveyance of the land by Brown, she could — the marriage tie being dissolved — recover the land in an action at common law, or enter into possession of it under the statute of Henry the 8th. It follows, that the defence of Mrs. Brown and her tenant, under the circumstances of the present case, must be a good one.
W. J. Peaslee, for the plaintiff. P. Sweetser, for the defendants.The cases of Kriger v. Day, 2 Pick. 316, and Starr v. Pease, 8 Conn. 541, relied on by the defendants’ sustain the defence. There is also a later case in the defendants’ favour. Wheeler v. Hotchkiss, 10 Conn. 225. This last-cited case was one in which the husband was tenant by the curtesy initiate; and yet it was held, that the estate of a party claiming under the husband must yield, after a divorce a vinculo matrimonii, to the superior right of the wife.
Per Curiam.the judgment is affirmed with costs.