Bush v. Bradley

Reeve, J.

(after stating the case.) It was contended by the defendant, that the plaintiffs could not recover without joining the other persons in the same degree of kindred with themselves in the suit. This objection cannot prevail, since a practice has obtained in this state, where there are several who have a joint title, for one or any number of them to sue and recover against him who has no title. Although this is not the rule of the common law of England, yet, as no inconvenience is expo-rienced from this practice long established, it wo,ul<|jp@t be proper to restore the old common law. No injury ⅛ done to the wrongdoer, whether he is ejected by somfii op ajj} W]1Q ¡rave title. No injury is done to those who are not joined; for those who sue, recover and hold the possession for them as well as for themselves. This court, therefore, do not consider the nonjoinder ⅛ the suit of some who have title, as a reason in Connecticut why the plaintiffs should not recover ; nor is it a reason why the suit should abate, if advantage of it had been attempted in that way.

It is contended by the defendant, that when the title to the premises accrued to said Mary, she was a minor; and by the clause in the statute of limitations saving the rights of minors, they must sjie within five years after hav* ing arrived to the age of 21 years, and not afterwards; that much more than this time had elapsed, and no suit had been brought; and her becoming a feme covert after the title had accrued whilst a minor does not bring her within the proviso of the act; that the true construction of the statute is, that if the title first accrues during minority, five years after that ceases is given in which a suit may be brought; that if the title accrues during coverture, five years is allowed after the disco-verture. On the other, hand, the plaintiffs contend that the object of the statute was to save the rights of the minor and feme covert, because of their inability to pursue them; and that it is as important that a minor who cannot prosecute her rights with sufficient discretion during minority, who becomes a feme covert during that period, and by this means is incapable of prosecuting them, should be effectually protected, as one to whom the title accrues during coverture. If the sound construction of the statute is as contended for by the defendant, it puts an end to' the case; but as the case is with the defendant on another point, viz. that Goldear is a tenant by the curtesy, provided the construction is as 'tóbftffended for By the plaintiffs, 1 do not find it necessary tó determine the question respecting the saving proviso iít'the statute of limitations; but shall proceed upon the hypothesis that the construction is such as the plaintiffs claim it to be.

f 3 As to the point respecting the curtesy, there is ño 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 favoured ; that by such means every thing is rendered uncertáin. 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 feal 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 rations 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 heir at law. No : he must be actually seised thereof. " The maxim is seisinafacit 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 C., his sister and heir.; for B., being of the half blood, cannot, by their law, inherit to his. brotheai 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 C. The maxim of seisina fácil stifiitem. 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.(a) 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 sufficient to maintain an action of trespass against every intruder; but by the 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 claim of title, whilst the same words in the 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 case. The English law distinguishes betwixt a light of possession and a right of property ; but our law does not. Wherever there is a right to real property, there is, of coarse, 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 it 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 been departed from: and to adhere to it in this case would mar the symmetry of our law.

Mitchell, Ch. J., Swift, Trumbull, Baldwin and J. C. Smith, Js. were of the same opinion.

(a) Vide Hillhouse v. Chester, 3 Day, 166.