
    Bradstreet vs. Pratt.
    A feme covert is not hound by the acquiescence of her husband in an erroneous line, dividing lauds owned by her from adjoining lands.
    The question of acquiescence arising from the maintenance of a division fence and occupation in conformity to it, can not be determined by the judge, but must' be submitted to the jury under such instructions as to the law of the case as the judge thinks proper to give, 
    
    m This was an action of ejectment, tried at the Herkimer circuit, in September, 1834, before the Hon. Hiram Denio, one of the circuit judges.
    The parties are owners of adjoining lots. In 1832, the plaintiff caused a survey to be made of the lot owned by her, and it was discovered on such survey that the division fence between the,two lots was not on the true line, that it encroached upon the lot of the plaintiff from 40 to 80 links, the fence being crooked. This fence was built by the occupant of the lot now owned by the defendants thirty-eight years previous to the trial, and has been continued ever since. The lot owned by the plaintiff was demised in 1806, by one Matthew Codd, the then husband of the plaintiff, to a tenant for one year, and in 1807, to another tenant for eight years. In 1799, the plaintiff intermarried with Matthew Codd, and in 1817, she was divorced from her husband. From 1822 to 1831, the plaintiff’s lot was occupied by tenants holding under demises from her, and in 1831, the plaintiff entered into the actual possession and occupation of the lot, and resided thereon until April, 1834. The judge ruled that an acquiescence for more than thirty years having been shown on the part of the plaintiff and those under whom she claimed, in the line designated by the fence claimed by the defendant as the division line between the two lots, such acquiescence was a bar to a recovery in this action, and that the coverture of the plaintiff did not save her rights, she being concluded by the acquiescence of her husband and herself. The counsel for the plaintiff excepted to those decisions and claimed the right to address the jury upon the questions of fact in the case; but the [45] judge decided that as the facts showing the acquiescence were proved by witnesses introduced by the plaintiff, there was no disputed question of fact in the cause, and consequently the plaintiff’s counsel would not be permitted to address the jury; to which decision the counsel also excepted. Whereupon the judge charged the jury in conformity to the decisions made by him, who found a verdict for the defendant, which the plaintiff now moved to set aside.
    
      J. L. Tillinghast, for the plaintiff.
    
      J. A. Spencer, for the defendant.
    
      
       See Adams v. Rockwell, 16 Wendell, 285, and note to that case, in the present edition.
    
   By the Court,

Nelson, Ch. J.

It is clearly shown that the line fence between lots 43 and 44, up to which the parties occupy and improve, was built about thirty-eight years before the trial; and that it has'been recognized as the boundary line ever since by the occupants of the respective lots. Down to the 16th June, 1817, the plaintiff, who owned the east half of 43, was a feme covert, and the premises were under' the control of Codd, the husband, who had leased them to tenants. At that date the plaintiff became divorced, and her disability ceased.

The husband was tenant by the curtesy initiate, and held an estate for life, in the premises, and it was contended before the circuit judge at the trial, that his acquiescence in the line of the fence and in the occupation of the defendant and those under whom he claims and holds, could not operate to the prejudice of the rights of the plaintiff; that she was chargeable with acquiescence only since the removal of her disability. The judge, however, ruled that she was bound by the acts and laches of the husband, and that the acquiescence in recognition of the fence as the true line, had existed for such a length of time as to afford a conclusive bar to the action of ejectment. In this opinion I think the learned judge erred, and therefore a new trial must be granted. If the defence rested upon the ground of adverse possession for twenty years, the proviso to the statute in [46] favor of femes covert would be a complete answer to it; here only about fifteen years have elapsed' since this disability was removed, before suit brought. Though the defence in this case does not rest upon this principle, it does upon a somewhat analogous one; adverse possession for a given time is sufficient in the former case; in this, there must be something more; there must be actual occupation and improvement, as well as acquiescence, to constitute the bar short of the statute time. Femes covert are not bound by the statute bar, .because they possess no power to contest the entry and adverse holding during the coverture, and therefore acquiesce from necessity; so in respect to the defence under consideration, they (femes covert) possess no power to dispute the encroachment; and the acquiescence, either express or implied, which is an essential ingredient in the principle of the defence, exists only by reason of a legal disability; it is an acquiescence by necessity. Again; the husband, at most, has but an estate for life out of the inheritance of the wife (Cruise, tit. Curtesy, ch. 2, § 28; 2 Black. Comm. 126; Reeve’s Dom. Rel. 27; Co. Lilt. 357); and it is a well settled general principle, that the tenant for life can do no act to the prejudice of the remainder man (4 Johns. R. 390; 8 id. 262; 5 Cowen, 95, 96, 101, 103; see also 1 R. L. 1813, p. 181, 2, 3 and 2 Bac. 323.) The acquiescence then, by the plaintiff, having continued for only about fourteen or fifteen years, the question as to its conclusiveness upon her rights belonged to the jury, under the advice and direction of the court in respect to the law; and though we might think that they should come to the same conclusion at which the court arrived, still it would be trenching upon their province to withhold the case from their consideration (13 Wendell, 536,) and cases here cited. New trial granted; costs to abide the event.  