
    Guion vs. Anderson.
    1. To constitute a tenancy by the curtesy, there are four requisites, to wit, marriage, seizin of the wife, issue, and death of_the wife.
    2. A seizin in law, or constructive seizin of wildlands, not adversely held, will en» able the owner to maintain trespass, and is such a. seizin in a wife, whether claiming as heir, by devise, or by deed, as will make the husband tenant by the curtesy.
    3. By marriage the husband gains an estate of freehold in the inheritance of the wifo. If there bo a disseizin during coverture, it is a disseizin of the entire joint estate, and they must jointly bring suit to recover possession. In such case the statute of limitations will be run against both husband and wife from the time of the adverse entry. Where the wife dies daring coverture the statute bars the right of the husband in the same time it would havo barred the right of the deceased wife ; and as no cumulative disability stops the running of the statute, the right, of the issue of the marriage would also be barred by virtue of and according to the provisions of the statute.
    Henry L. Guión filed this bill in the chancery court at Mur-freesborough, against Samuel Anderson. The bill alledged the commission of waste on a tract of land, lying in the county of Rutherfoi’d, in the possession of defendant, to which the complainant, Gnion, claimed a right in remainder. The defendant admitted the commission of waste, but denied the alledged right of complainant to any interest whatever in the land and claimed a right in fee simple to it.
    The facts are as follows: — The land was granted to Henry Winborne in 1785. Winborne died in 1795, without ever having taken possession of the land. He died intestate, leaving an only child, Elizabeth. Elizabeth intermarried with John Guión in 1808, then about sixteen years of age, and gave birth to complainant in February, 1810, and died on the 10th February, 1815. Her husband still lives. Neither said Elizabeth or her husband, or the said Henry ever took possession of the land. In 1809, one Hardy Murfree took possession of part of said land, claiming to have purchased from Henry Winborne, the grantee, and held it till his death, and on his death the real estate of Murfree was divided between his heirs, and the land granted to Winborne was allotted to Louisa Murfree, who af-terwards became the wife of H. Burton. In the lifetime of Elizabeth Guión, Burton took possession of land, and held it adversely till September 1829. At that time the land was conveyed by Burton and wife to the defendant, Anderson. Anderson held the land adversely till the time of filing this bill.
    The following decree was entered in the chancery court:—
    FINAL DECREE.
    “Be it remembered, that this cause came on for hearing at 'the adjourned term of this court, in May, 1847, before the Hon. B. L. Ridley, chancellor, &c., upon bill, answer and replication, exhibits and proof, and in presence of counsel on both sides, and after being fully argued, the court saw fit to hold the same under advisement until the present term.. And now, on this 9th day of July, 1848, his Honor, the Chancellor, proceeded to pronounce his opinion and decree. And it appearing to the court that the land in the pleadings described, was on the 7th of March, 1785, granted by the State of North Carolina to Henry Winborne, who afterwards died intestate, leaving Elizabeth, afterwards the wife of John Guión, an infant and only child and heir, to whom his estate in fee simple in said land descended, he never having sold or conveyed it to any one: — That in 1808, Elizabeth, being then a minor, intermarried with John Guión, and that H. L. Guión, the complainant, is the only issue of their marriage, having been born on the 21st of February, ,1810; that Elizabeth Guión died on the 10th of January, 1815, leaving her husband surviving her, and who still survives. It further appeared that neither Henry Winborne, the grantee, nor any one else under him, ever had actual possession of said land; but that the same was wild and uncultivated, until about the year 1810, when Hardy Murfree entered upon and made a small improvement on th% northern boundary of the tract, that the said Hardy Murfree claimed said lands as his own; having no deed or other instrument purporting to be an assurance of title to him for it, and continued his said possession and claim up to the .period of his death; and after his death his heirs continued the possession and claim until his lands were partitioned among his heirs, in 1813, when the land in controversy was allotted by deed of partition to Lavinia Murfree, afterwards the wife of F. N. W. Burton; that on the 1st of January, 1815, F. N. W. Burton entered upon and took possession of said land, claiming it under said deed of partition, which possession he continued until January, 1830, when the defendant, Samuel Anderson, came into possession under purchase from said Burton, who conveyed to him by deed, bearing date the 17th day of September, 1829, and the said Samuel Anderson has held possession and claimed said land as his own ever since. And the court is of opinion, the said lands descended to and vested in Elizabeth Guión, the daughter of the grantee, at his death, and that she was thereof seized in law; that' on her death the same descended to and vested in the complainant, her only child and heir, subject to a life estate in her husband, John Guión, as tenant by the curtesy. And the court is further of opinion, that the possession of Murfree and his heirs, from 1810 to 1813, when the deed of partition was executed, being a naked possession, without claim or title, was a mere possessory right and did not aid in conferring any title on them, that the possession of F. N. W. Burton and the deed of partition, from the 1st January, 1815, or the subsequent possession of Samuel Anderson under Burton’s deed, confers no title as against the complainant, who was not and cannot be entitled to a right of entry until the estate by the curtesy fails, by the death of the husband,; that such possession could only operate to div est the title of th® tenant by the curtesy, and vest it in the possessor, while the estate and right of the complainant, the remainder man, remains unimpaired; and that be will therefore be entitled to enter upon said lands, where the life estate fails by the death of the husband. The court is therefore of opinion, the complainant has a right to the interposition of this court, to preserve his estate in remainder and prevent waste. And it being admitted by defendant, that he has cut timber, cleared and reduced a great portion of said land to cultivation, which will, owing to its locality, materially affect the value of said land, and make the enjoyment of his estate less valuable to complainant. The court doth therefore order, adjudge and decree, that the defendant be enjoined and restrained from clearing any more of said land, and from cutting any more of the timber growing thereon, except such*as may be necessary for the necessary repairs of the farm and for firewood.
    It is further ordered, adjudged and decreed, that the defendant pay all the costs of this cause for which execution may issue.”
    From this decree Anderson appealed.
    
      Charles Ready, for the complainant.
    Elizabeth, the daughter of Henry Winborne, afterwards Mrs. Guión, was seized and possessed, by intendment of law, of the land, from the time it descended to her from her father, the grantee until she was disseized by Hardy Murfree and those claiming under him, taking possession. John Guión, the husband of Elizabeth, was also seized and possessed of the land, with his wife, by construction of law, from the time of his marriage, until the disseizin by Hardy Murfree, and those claiming under him. Jackson ex dem. of Beckman vs. Sellick, 8 Johns. 262. Green vs. Liter et als, 3 Cond. Rep. S. C. U. S. 98. McCorry vs. King’s heirs, 3 Humph. 267.
    If John Guión and wife had a seizin in law of the land, as certainly they had, then under the facts of this case, John Guión was tenant by the curtesy; and though the inheritance was cast on the complainant, (who is Mrs. Guion’s son) at her death, he had no right of entry, or right to sue for the land, as long as the tenancy by the curtesy lasted. The tenant by the curtesy is yet living; and therefore the complainant’s right of entry, or right to sue for the possession, has not yet accrued or fallen; and ho is not barred by the statute of limitations. This position is inevitably correct, if John Guión, the husband, is entitled as tenant by the curtesy.
    The important question then arises, is John Guión tenant by the curtesy? Littleton thus defines tenancy by the curtesy. “Tenant by the courtesie of England is, where a man taketh a wife seized in fee simple or in fee taile general, or seized as heir in taile especially and hath issue by the same wife wife male or female borne alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England.” Coke’s Institutes, 1st vol. 29a, sec. 35. Mr. Cruise in his digest of the law of real property, adopts'this definition. 1st Cruise 146, sec. 3. In sec. 4, same page, he says: “Littleton’s description of this estate points out four circumstances as absolutely required to the existence of this estate; namely, 1st, marriage; 2d, seisin of the wife; 3d, issue; 4th, death of the wife. See also Coke Litt. 30a.
    Chief Justice Kent in his commentaries, 4th vol. page 27 says: “Tenancy by the curtesy is an estate for life, created by the act of the law. When a man marries a woman, seised, at any time during the coverture, of an estate of inheritance, in severalty, in coparcenary, or in common, and hath issue by her born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the land during his life, by the curtesy of England; and it is immaterial whether the issue be living at the time of the seisin, or at the death of the wife, or whether it was born before or after the seisin.”
    At page 29, same vol. Kent says: “Four things are requisite to an estate by the curtesy, viz: marriage, actual seisin of the wife, issue, and death of the wife. The law vests the estate in the husband on the death of the wife, without entry. His estate is initiate on issue had, and consummate on the death of the wife.” This is the common law doctrine; and is modified in this country, so that actual seisin or seisin in deed of the wife is not required here as in England. At the bottom of the page last referred to, Kent says: “But the circumstances of this country have justly required some qualification of the strict letter of the rule; and if the wife be owner oí 'waste, uncultivated lands, not held adversely, she is deemed seised in fact, so as to entitle her husband- to his right of curtesy.” See the authorities referred to in the note upon this principle.
    In this case, the four things occurred, which are requisite to constitute a tenancy by the curtesy, to wit: marriage, seisin in law of the wife, issue, and death of the wife. It would seem therefore, to follow, as a corollary, that the husband is entitled to hold as tenant by the curtesy. Indeed this conclusion cannot be resisted, unless the manner in which the wife acquired her estate presents an obstacle. In England, there is a distinction made between cases where the wife acquires her right in the land by feoffment and livery of seisin, and by descent or devise. In the latter cases, it is necessary that the wife should make an entry upon the lands, to entitle her husband, as tenant by the curtesy. This is but in accordance with the doctrine there held, that thepe must be an actual sei-sin or seizin in deed by the wife, which cannot take place, though the estate is cast by descent, or devise, on her, until there is an entry by her on the land. Where the wife is en-feoffed, the very act of enfeoffment constitutes an entry, or a seisin in fact, according to the ancient mode of feoffment. Coke tells us “Ephron enfeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the cave therein I give thee, and. all the trees in the field and the borders round about; all which were made sure unto Abraham for a possession, in the presence of many witnesses.” This is the most ancient feoffment of which there is probably any record. It was made by going upon the land in the presence of witnesses, when livery of seisin was made, by which the feoffment was completed. This is. in accordance with the definition of feoffment given by Bouvier, as formerly used in England, though now obsolete, even there.
    Chief Justice Kent, 4th vol. page 30, after defining the kind of seisin in the wife, necessary to entitle the husband as tenant by the curtesy, says: “To entitle the husband to curtesy, the wife must have had such a seisin as will enable her issue to inherit; and therefore, if she claims by descent or devise, and dies before entry, the inheritance will go, not to her heir, but to the heir of the person last seised, and the husband will not have his curtesy.” Here Mr. Kent had an eye to the ancient English doctrine; and has stated a principle which seems inconsistent with the principle contained in the preceding part of the same paragraph; or it may be, he was governed by the assertion of the principle, in the case of Jackson vs. Johnson, 5 Cow. 74, referred to in the note. But however the law, on this point may be in England and New York, it is certainly in Tennessee, not as stated by Kent in the last extract. The common law doctrine is doubtless, as Kent has stated it. But in Tennessee it has been changed by legislative enactment. See stat. 1784, ch. 22, sec. 2, in Car. & Nicholson, 247.
    If the wife must be seized of' an estate of inheritance, to entitle the husband to hold as tenant by the curtesy, which may be conceded, and which seems to be the common law test, and the test in the quotation from Kent, our statute of 1784, referred to, gives the estate cast on Mrs. Guión by the death of her ancestor, Winbome, that quality. And this very question is res adjudícala by this court, in the case of Guión vs. Burton, Meigs, 565, which was an action of ejectment for the very land involved in this suit. That case turned upon this question; and the court say, in reference to the effect of the statute of 1784, ch. 22, sec. 2, “By the statute, the inheritance is transmitted, whether the person dying intestate had been seized in deed of the land or not. If the intestate had any right, title or interest in the estate, it is transmitted to the heirs of such person. These words necessarily include the interest Mrs. Guión had in the land in controversy, and which was transmitted, at her death, to her son, the present plaintiff.”
    Then-Mrs. Guión had an estate of inheritance; she was married; was seized in law; had issue; and died, her husband surviving her. It follows that he is entitled as tenant by the curtesy.
    But in this case, adverse possession commenced before the death of Mrs. Guión. Does that change the husband’s right to possession by the curtesy ? Or rather, did it prevent the husband, who was tenant by the curtesy initiate, by his marriage', seisin of the wife, and birth of a child, before the dissei-zin, and adverse possession commenced, from becoming tenant by the curtesy consummate, on the death of his wife?'
    Coke, 1st vol. 30 a, after stating that four things belong to an estate of tenancy by the curtesy, viz: marriage, seizin of the wife, issue, and the death of the wife, says: “But it is not requisite that these should concur together all at one time. And, therefore, if a man taketh a woman seized of lands in fee, and is disseized, and then have issue, and the wife die, he shall enter and hold by the curtesy. So if he hath issue which dieth before the descent, as is aforesaid.”
    
      “And albeit the estate be not consummate until the death of the wife, yet the estate hath such a beginning after issue had in the life of the wife as is respected in law for divers purposes.”
    “First, after issue had, he shall do homage alone, and is become tenant to the lord, and the avowry shall be made only upon the husband in the life of the wife,” &c.
    “Secondly — If after issue, the husband maketh a feoffment in >fec, and the wife dieth, the feoffee shall hold it during the life of the husband, and the wife shall not during his life recover it in sur, cui in vita; for it could not be a forfeiture, for that the estate,' at the time of the' feoffment, was an estate of tenancy by the curtesy- initiate and not consummate. And it is adjudged in 29 E. 3, that, the tenant by the curtesy cannot claim by a devise, and waive the estate of his tenancy by the curtesy, because, saith the book, the freehold commenced in him before the devise for term of his life.”
    In Cruise’s Digest, 1st vol. 147, sec. 7, it is said; “the time when the'seizin commences, whether before or after issue had, is immaterial; for if a man mames a woman seized in fee, is disseized, and then has issue, and the wife dies, he shaft enter and hold by the curtesy. So if he has .issue which dies before the dpscent of the lands on the wife.”
    These authorities show, when the husband is disseized, (which is the the wrongful putting one, who is seized, out of his possession, and depriving him of his freehold,) during the life of his wife, he shall enter after her death, and hold by the curtesy. Now entry, in regard to estates and rights, as defined by Bouvier, “is taking possession of lands by the legal owner.” Then, if the husband has a right tp enter, in the case stated, and hold by the curtesy, it is because he is the legal owner of the land for the time being. • If he is the legal owner, and has a right of entry, he has also a right of action, to sue for and recover the possession. We cannot conceive of a man being the legal owner of land, without his having a right of action, whenever that ownership is interfered with, by the unlawful acts of another. Indeed the terms “right of entry” and “right of action,” are synonymous. The late supreme court, in the case of McGorry vs. King’s heirs, treat them as such. They say; “the person barred by the statute, is one whose right to enter or bring suit, has. come or accrued, and who after that event, omits and neglects, for the space or term of seven years, to bring such suit. The person protected by the statute, is one who has been in actual possesion for the whole term of seven years, claiming adversely against one who has, during that whole term, had the right to enter or bring suit.”
    . In Jackson vs. Johnson, 5th Cowen 74, the very question under discussion was presented. Adverse possession was taken in the life of the wife; the wife then had issue; (in Gfuion vs. Anderson, the issue was before adverse possession commenced ;) then the wife died, the husband surviving her. The court decided, that the husband was entitled, as tenant by the curte-sy, to the lands so adversely held. Sutherland, judge, says at page 95; “It is clear, that the birth of a child at any time during coverture, whether before or after the commencement of the defendant’s possession, would constitute Cooper (the husband) tenant by the curtesy of all the lands of his wife, of which, during coverture, she was so seized as to support such an estate.”
    The foregoing authorities abundantly prove, that although the adverse possession commenced in the life of the wife, the husband, John Guión, was entitled to hold as tenant by the curtesy, from the death of the wife; and that he had aright of entry, or action at law, to recover the possession from the disseizor. Indeed, it cánnot, it is believed, be even doubted, had John Guión brought suit for the land, after the death of his wife, within the time limited by the statute, he would have recovered and held as tenant by the curtesy.
    Having shown that John Guión, the husband, was entitled to hold as tenant by the curtesy, the question arises, is the complainant, who' is the heir, barred by the statute of limitations, from recovering the remainder, the husband being yet alive, and the term of the particular estate therefore not ended?
    On this question, an answer in the negative would seem necessarily to result from the establishment of the position, that the husband is entitled as tenant by the curtesy. But authorities are numerous and direct on the subject. Clark vs. Vaughan, 3 Con. Rep. 191. Heath and imfe vs. White, 5 Con. 228. Jackson vs. SchoonrnaJcer, 4th John. 390. In the last cited case Kent, Ch. J., says, “Neither a descent cast, nor the statute of limitations will affect a right, if a particular estate existed at the time of the disseizin, or when the adverse possession began, because a right of entry in the remainder-man cannot exist, during the existence of the particular estate; and the laches of a tenant for life, will not affect the party entitled. .An entry to avoid the statute, must be an entry for the purpose of taking possession, and such an entry cannot be made during the existence of the life estate.” See also Jackson vs. Sellick, 8th Johns. 262.
    The case of Jackson vs. Johnson, 5th Cowen, 74, as already intimated in discussing another point, is remarkable for the resemblance it bears, in several of its features, to the case under consideration. In that case, a question as to the operation of the statute of limitations arose, a tenancy by the curtesy intervening, as in this case. After quoting and commenting on the opinion of Ch. J. Kent, which I have extracted from the case of Jackson vs. Schoonmaleer, Ch. J. Savage says; “I apprehend the doctrine is equally true, that the right of a rever-sioner or remainder-man is not affected by the statute, if the particular estate existed when the right accrued. And the same reason may be given for the one as the other; because the right of entry never existed in him, in reversion or remainder, during the continuance of the particular estate. When did the statute become operative? Not till the death of Mrs. Cooper, (the wife,) as that event terminated the (cover-ture. But the same event which subjected her heirs to the operation of the statute, consummated the particular estate, which precluded them from any right of entry; et impotentia excusat legem P
    
    “Before the statute can, by any reasonable construction, be made to operate, there must be laches on the part of those asserting a right of entry; and the policy of the statute gives to every claimant at least ten years, within which laches shall not be imputed.”
    It may be asked here, when did Henry L. Guion’s right accrue? The answer is, not till the death of his mother. Then, in the language of the judge above quoted, it may be replied, “the right of (Henry L. Guión) the remainderman is not affected by the statute, if the particular estate éxisted. (which I have shown) when the right accrued.” Is the reason of this asked? It is given in the language of Ch. J. Savage above, “because the right of entry never existed in him, during the continuance of the particular estate.”
    Again, it may be asked, when did the statute become operative ? The answer is furnished in the language of Savage, Ch. J. Not till the death of Mrs. Guión, as that event terminated the coverture. But the same event which subjected her heir (the complainant) to the operation of the statute, consummated the particular estate, which precluded him (the complainant) from any right of entry; et impotentia excusat legem.
    
    Savage, Ch. J., in his opinion continues as follows: “At what period of time, I would ask, was it in the power of the heirs of Mrs. Cooper, to have asserted their rights, before 1817, when Thomas Cooper (the husband) died? Thteir infancy, I admit, is no excuse for them, as successive disabilities are not allowed. The statute was not operative till the death of Mrs. Cooper. It is true, indeed, that more than twenty years have elapsed since the adverse possession commenced; and more than ten years since the last disability was removed, which existed when disseizin took place; but I would ask, when were the claimants guilty of laches? They were not bound to make an entry, or claim, till the death of Mrs. Cooper. And from that period, till the death of the tenant for life, the law would not permit them to enter. Shall laches, then, be imputed to them? Certainly not. Whether Colden Cooper (the heir) was born before or after the disseizin, seems to me not to change the rights of the parties. The lessors of the plaintiff have brought their action within ten years after the operation of the statute upon their claim; and are not barred by it.”
    As in the above quotation, it may be asked, «when was Henry L. Guión guilty of laches ? The language above gives the answer. He was not bound to make an entry, or claim, till the death of his mother. And from that period till the death of the tenant for life (which has not yet occurred) the law will not permit him to enter. “Shall laches, then, be imputed to him? Certainly not.”
    I have extracted copiously from the case in Cowen, because it seems to me, the principles settled in that case are conclusive of this, if they are to be regarded in Tennessee. And they have been fully recognized by our late, supreme court; and much that I have extracted, has been quoted with entire approbation in McGorry vs. King's heirs, 3 Humph. 267.
    The case of McGorry vs. King’s heirs, above mentioned, is as much in point on the question of the statute! of limitations. Indeed, it may be said to cover every point in this case.
    
      1st. In regard to the kind of seizin the wife must have, to entitle the husband to hold as tenant by the curtesy.
    2d. As to the time at which the husband’s right, as tenant by curtesy, commences. And,
    3d. As to the, operation of the statute of limitations. It was a well considered case; and commands our respect and admiration for the ability with which it was discussed both by the circuit judge, and the revising court, even if it were not, as it is, a binding authority.
    The facts of the case, as far as it is necessary to refer to them, for present purposes, were as follows: — Jane Gillespie, afterwards the wife of William King, was seized of the lands in controversy, by devise from her father. In 1803, after her marriage with King, he conveyed the lands to Hayworth by deed in fee. The wife did not, in any manner, join therein. In 1804 Hayworth conveyed the lands to John Copeland. In 1809, one David Copeland conveyed a part; and in the same year one Samuel McNair conveyed a part of the same lands to McCorry, the plaintiff in error. McCorry had been in pos-sesssion ever since the date of his deeds, claiming the lands as his absolutely. Mrs. King died in January, 1828, and William King, her husband, died in October, 1835. The defendants in error were the children of Jane and William King; and commenced their action of ejectment for the lands, on the 4th of February, 1837, claiming by descent from their mother, Jane King. It will be observed that McCorry, who claimed to have been holding adversely all the time, took possession nineteen years before the death of Mrs. King; that nine years intervened from her death until suit brought by her heirs; and that the suit was brought within three years from the death of the husband, William King. It was insisted by McCorry, that in as much as the defendants in error, but plaintiffs in ejectment, did not commence their suit within three years, nor within seven years from the death of their mother, they were barred by the statute of limitations. The court held that the husband was entitled as tenant by the curtesy; that the statute of limitations did not commence running against them, until the termination of the particular estate; and the suit having been commenced within three years after the death of the tenant by the curtesy, their right was not barred.
    But this case is peculiarly appropriate, and furnishes a conclusive answer to an argument in behalf of „the defendant, Anderson. It will be insisted for him, that in as much as the statute of limitation of 1819, ch. 28, sec. 2, provides, that “no person or persons, or their heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, &c., but within seven years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued, and that all suits, either in law or equity, for the recovery of any lands, &c., shall be had and sued within seven years next after the title or cause of action, or suits accrued or fallen, and at no time after the said seven years shall have passed,” the complainant is thereby barred, because it is said his right to commence his suit had come, fallen or accrued, at the death of his mother in 1815; and not having sued within seven years next after his title, or cause of action, had accrued or fallen; and not being within the saving of the statute, his fight is barred. This argument involves the question, as to when complainant’s right to commence his suit had come,' fallen or accrued. I have already showed that the husband was entitled to possession as tenant by the curtesy; that the heir has no right of entry or of action, until the termination of the estate by the curtesy, which is not yet ended. It therefore follows, that his right to commence, have or maintain his suit to recover possession has not yet come, fallen or accrued; and, therefore, although he is not within the saving of the statute, it can make no difference.
    
      If there were any doubt as to the construction of this statute, from its own reading, the case of McCorry vs. King would remove every vestige of it. The learned judge in his opinion says, in reference to the argument on the statute of limitations in that case; “the argument in its principle, would extend to and embrace all particular' estates of what kind or description soever, and whether created by deed, by will, or by operation of law, and bar the remainderman or reversioners, if for seven years they failed to bring suit, if under none of the disabilities stated in the statute.”
    “It is true those particular estates are not included in any exception of the statute. It would have produced confusion and absurdity to have attempted this, because the benefit of the exceptions contained in the statute is conferred upon those to whom a right has come to sue the tenant in possession, and who, therefore, would be barred by the general provisions of the statute, but that they are protected by some of the enumerated disabilities. But no right or title, or cause of action has come, accrued, or fallen to enable a reversioner or remainder-man, before the termination of the particular estate, to sue the tenant in possession; and, therefore, the reversioner or re-mainderman, under such circumstances, whether within an exception of the statute or not, is wholly unaffected by the statute. The person barred by the statute, is one whose right to enter or bring suit has come or accrued, and who after that event omits or neglects, for the space or term of seven years, to bring such suit. The person protected by the statute, is one who has been in actual possession for the whole term of seven years, claiming adversely against one who has, during that whole term had the right to enter or bring suit. Those claiming under the disabilities enumerated in the statute, have the right and power to bring suit,. but are excused therefrom on account of such disabilities. But a remainder-man or rever-sioner has no right or power to bring an action; he is not excused therefrom, for he cannot do it at all. His omission of it is no neglect, his postpostment of it is no laches. His light to an action has not yet accrued. He cannot, during the term of the tenant for life, lose his estate, or be barred of his right by the fault or wrong, neglect or laches of the owner of the particular estate. There is^ nothing in the statute which implies this, but much which implies the contrary. The persons barred by the first section of the statute of 1819, are those who shall neglect, for the term of seven years, to avail themselves of the title, by suit in law or equity; and the same principle of laches and neglect to sue within seven years after the accrual of a title or right of action, as operating a bar, is found in the second section.” This opinion would seem to cover the whole ground in regard to the statute of limitations.
    But it may be further argued for Anderson, that the statute of limitations commenced running in favor of the tenant in possession, in the lifetime of Mrs. Guión; and when that statute commenced running, nothing could stop it. The latter pi’oposition, as an abstract principle, is not controverted. Its application, in this case is controverted. The opinion last quoted, is a conclusive argument on the point. If it needs any support, it is found in the case of Jackson vs. Johnson, in 5th Cowen, above referred to. But it may be said that case, as far as the statute of limitations is concerned, turned upon the construction of the New York statute, which may be different from the Tennessee statute. I answer, it is well known the two statutes employ almost precisely the same terms; and substantially the same. It is known that the courts of Tennessee, have always looked to the New York decisions, upon the construction of the statute of that state, as the highest authority, and given them a controling influence, in construing our own statute. And in deciding the case of McCorry vs. King’s heirs, our court, immediately after the luminous ex- . position of their views above given, proceed to say, “that this reading of our statute is correct on the point before us, is shown by several cases on the New York statute;” and then refer to the cases by name. Amongst others, the case of Jackson vs. Johnson, which is highly commended; and in reference to which they say, it “is identical in its principal question with the one before the court.” They proceed to say; “it is a case of tenancy by the curtesy outstanding in the husband after the death of the wife, and preventing the heirs of the wife from bringing suit, and the decision and result of the case are strongly in point in the present case.’?
    The first proposition in the argument last referred to, remains yet to be disposed of, to wit: that the statute of limitations commenced running in favor of the tenant in possession, in the life time of Mrs. Guión. The case of Guión vs. Bradley Academy, 4th Yerger, will be relied on, in support of the proposition. Catron Ch. J. in delivering the opinion, at page 252, iii commenting on the statute of 1797, ch. 43, sec. 4, says: “Does the fourth section exempt infants and femes covert from the operation of the act? Clearly not. The act runs against them, because they have only three years allowed them to sue after full age or discoverture. The act does its office prima facie, in seven years, but the privilege to sue during infancy and coverture, and three years thereafter, is reserved to such persons. This they may do, or not do, at their pleasure. If they take'no advantage of their right to sue, no one else can. The privilege is personal, and limited to the person, or persons entitled to the land, and to sue, when such right of action first accrued. Especial care was taken by the act of 1715, not to save the bar in favor of the heir of an infant, or feme covert,. dying with the right of action.” Now, it is true, the judge does say the statute runs against femes covert; but obviously, in a qualified sense. If the isolated expression, in regard to the running of the statute against a feme covert, were taken by itself, it would prove that a feme covert would be barred in seven years. Yet it is undeniably true, if she were covert when her right of action accrued, and so continued fifty years, she would still have three years after her discoverture, to sue. It is manifest, the expression was loosely used by the judge. The better mode of expression, would have been, that the statute does not run against femes covert; but commences running at their discoverture, and performs its office in three years. A similar provision is contained in the New York statute, with the difference that twenty and ten years are given. In Jackson vs. Johnson, Savage Ch. J. says, the statute did not become operative, until the death of Mrs. Cooper, (the feme covert) as that event terminated the coverture. Then (at the death of the feme covert) the statute commenced running. Against whom? The heir, if he had the right of entry; if his right of entry or cause of action had come, fallen or accrued; but not otherwise. Then against whom? Against he who had the right of entry to wit: the tenant by the curtesy; or whoever else might have a particular estate, whether created by deed, descent,‘devise, or by operation of law. Having commenced running at the death of the feme covert, against the person having the right of entry, the bar is formed in ten years. But who is barred in ten years? The person having the right of entry only. Whatever estate he had is lost. What becomes of it? It is vested in the tenant in possession. Though he had no valid title before, the statute has vested in him a valid title, which was before in another. What is the extent of that title so vested? It is co-extensive with the title of him against whom the statute has operated. Nothing more or less. The remainder-man’s rights are unaffected, because there has been, as yet, no interference with his rights. He cannot say to the tenant in possession, you are in possession of land, to which I have the right of possession. His time has not yet come. His term or estate is all behind. I-Iis right of entry, or of action has not yet come, fallen, or accrued. lie cannot bo charged with laches for not suing when he has no right to sue. And*it would be absurd to say to him, if you don’t sue in a given time, you shall lose your right, and then say to him, you shall not sue.
    But-this is a digression. The New York court held, under a statute similar to ours, that the statute did not commence running against a/me covert; butthat.it commenced at her dis-coverture, or death; and formed the bar in ten years. I believe judge Catron meant nothing more than the New York judges; but employed different terms in discussing the question. There is also an important fact, in connection with judge Catron’s opinion, and also with that of judge Green, in the same ca.se. They were not discussing the operation of the statute of limitations on the rights oí a remainder-man. They were discussing the question of cumulative disabilities; and they were adjudicating upon the rights of a party, whose rights were treated by himself, by the adverse party, and by the court, as having accrued at the death of his mother. And in one sense, they did then accrue. The estate in remainder, then vested in him. But still his case was treated as though his right of action had accrued at the death of his mother, when in fact it did not then, and cannot accrue till the death of the tenant; by curtesy. Furthermore; judge Catron was construing the statute, in reference to the exceptions therein contained, in favor of infants, femes covert, &c., at the time when their lights of action first accrued. The case between the present complainant and defendant, does not involve, or turn upon any of those exceptions. The court in McCorry vs. King’s heirs, decide that the rights of a remainder-man, are not included in, or affected by the statute of limitations, as long as the particular estate exists; until his right of entry or to sue accrues. And that is the present complainant’s case.
    
      Whatever judge Catron may have meant in Guión vs. The Bradley Academy, when he says the statute of limitations will run against ■a feme covert, the New York case, so often referred to, gives the only sensible construction. It has been at a late day, approved and affirmed, upon this identical point, by our late supreme court. Nay more. The principle and rule of construction for which I contend, stands out in bold relief in the opinion referred to, of our own court. Therefore if there is any conflict between judge Catron’s opinion and the New Y ork court, and the opinion of the late supreme court, the latter two overrule the former, in as much as they contain the latest exposition of the opinion of our supreme court on the subject.
    It is said the rights of the parties to' this suit have ‘already been adjudicated and settled in Guión vs. The Bradley Academy and Guión vs. Burton, which were actions of ejectment for portions of the same land. It is only necessary to say the question on which this case must turn, did not arise, and was not decided in either of those cases. The question was not made for reasons that must be obvious to every one, from an examination of those cases. If the parties did not present the questions arising in this case, and were then content to submit their cases to the determination of the court, on other issues, it would not be expected of the court to raise issues which both parties then wished to avoid; and which did not fully arise on the record. Those cases do not then settle this case.
    
      F. B. Fogg, for the defendant.
    Complainant files this bill, calling himself a reversioner, entitled to a tract of land, in Rutherford county, after the death of his father, whom he calls tenant by the curtesy of the same tract. Defendant denies the title to the reversion and tenancy by the curtesy, and claims an independent, adverse title to the land of which he and those under whom he claims have had possession more than thirty years before the filing of the bill. The bill is to stay waste. The title of the complainant and his father, if any, are purely legal, and if he can sustain any .action at all, it is at law for waste.
    The land was in 1789 granted to Winborne, the grand-father of the complainant. Hardy Murfree claimed the land by purchase from Winborne before it was granted, more than sixty years ago. He exercised acts of ownership before his death, which was in 1809, and actual pedis possessio was taken by one of his children under a partition of his real estate among his heirs in December 1814, which has continued ever since uninterruptedly. A possession of part oí the lands was taken by one of the heirs oí Murfree in 1809. No act of ownership of any kind, by paying taxes or otherwise, was ever done by Winborne,'the grantee, his daughter, the mother of complainant, or by her husband, or by any agent. Winborne died some time in 1793 or 4 or 5, and left complainant’s mother his only child, who married in 1808, and died in January 1815. Complainant’s father never made any conveyance of his pretended interest in the lands, nor ever claimed to be tenant by the curtesy.
    What is tenancy by the curtesy, and what reason is given why there should be actúalas well as legal seizin? “Inasmuch as the Baron may enter jure uxoris,” &c. 7 Viner, Title curtesy a, 5, page 148. Coke Littleton, 29 a. Preston on property. There was no .actual seizin; no claim of title by husband and wife, or either. 1st Sumner’s Rep. 263. 3 Devereux’s Reports.
    2. Husband and wife were both disseized in lifetime of wife, during mapiage, and probably she had a mere right at the time ofí’líe marriage. The adverse possession is clearly proved in December 1814. Suppose she was seized at the time of the marriage, what is the effect of disseizin of husband and wife? See 16th Pickering, 165. 1 Douglass Reports, 329. 2 Lutwyche, sec. 422. He was not tenant by curtesy at her death, and .she was not with him, or by herself seized in fee, so that the reversion descended to her heir; at the most the father had a right of action, and the son a mere possibility of reversion.
    3. The statute of limitations of 1819 is a bar. The right of action first accrued to complainant’s mother during her cover-ture, and the statute of limitations began to run against her. Guión vs. Bradley Academy, 4th Yerger. Guión vs. Burton for the same land now sought to be recovered, Meigs’ Reports. Husband and wife had a right to joint action, she died; husband never entered, or had a right to enter by our law. The words of our statute, and the exclusion of cumulative disabilities are conclusive to protect the possession for seven years.
    4. There is a presumption from the long claim and possession, that grantee conveyed to Hardy Murfree. See, as to nature of possession, Angelí on Limitations, 387, 425 to 429. 11 Peters, 53. 10 do. 442.
   McKinney, J.

delivered the opinion of the court.

This bill is brought to enjoin the defendant from committing waste upon a tract of land, in which the complainant alleges he has a vested remainder or reversion in fee. From the pleadings and proof in the cause, the following facts appear. On the 7th day of March, 1786, a grant issued from the State of North Carolina to Henry Winborne for the tract of land in dispute, lying in Rutherford county, Tennessee; and containing three hundred and eighteen acres. Winborne, the grantee, died in North Carolina about the year 1795, intestate, leaving Elizabeth Winborne, his only child and heir at law, surviving. In April, 1808, said Elizabeth Winborne intermarried with J ohn Guión, at about the age of sixteen years; and in February, 1809, gave birth to the complainant, who was the only issue of said marriage. On the 10th day of January, 1815, said Elizabeth Guión died, her husband surviving, who is still alive. The grantee never took possession of said tract of land; nor was possession thereof ever taken by said Elizabeth, either before or after her marriage; neither did said John Guión ever take possession of, or exercise any acts of ownership over, or set up claims as tenant by the curtesy, or otherwise, to said land; it remained wholly uncultivated and vacant from the date of the grant to the year 1809.

It appears that one Hardy Murfree, at an early day, claimed to have purchased said tract of land from Winborne, the grantee, previous to the issuance of the grant; and the copy of an informal conveyance is set forth in the record as the evidence of such purchase. It further appears that in the year 1809, said Murfree took actual possession of a small part of said tract of land, and held the same until his death, which happened not long afterwards. After the death of said Murfree, (who died intestate,) and in the year 1813, his heirs at law presented their petition to the county court of Williamson county, for partition of his real estate, of which they claimed said tract of land as forming part. In pursuance thereof,, commissioners were appointed, who made partition accordingly; and at the January session, 1814, their proceedings were returned to said court, and were recorded in the manner prescribed by law. In the foregoing division, the tract of land in dispute was allotted to Lavinia B. Murfree, daughter of Hardy Murfree, who intermarried" with F. N. W. Burton. On the 1st day of January, 1815, and in the lifetime of said Elizabeth Guión, said Burton, in right of his wife, and in virtue of the aforesaid partition, took possession of said tract of land and held the same, adversely, until the 17th day of September, 1829, when he and his wife joined in a conveyance thereof to the defendant, Anderson, who has continued the possession ever since in opposition to the claims of ail other persons.

Two actions of ejectment have been prosecuted by the complainant for the recovery of said tract of land, commenced in the year 1831, against the defendant and others, in both of which he failed, on the ground that having set up claim thereto as heir of his grandfather, Henry Winborne, the statute of limitations, which commenced running against his mother, Elizabeth Guión, in her lifetime, barred his right of recovery. He now brings this bill, in which it is assumed that his father,John Guión, who is still living, is tenant by the curtesy of said land: and as such, has a life estate therein, and that, until the termination of the life estate, he has no right of action to sue for or recover the same; and that in this trial the statute of limitations can have no effect or operation upon his rights. The bill charges that the plaintiff is committing waste by the destruction of timber and otherwise, whereby his interest in remainder will be greatly injured and lessened in value. The defendant in his answer admits the waste as charged in the-bill, but claims that he is the absolute owner in fee of said tract of land. He denies that said John Guión is, or ever claimed to be tenant by the curtesy, of said land. He likewise denies that the complainant has any interest or estate therein in reversion, remainder, or otherwise.

The relief sought by the bill is resisted upon several grounds; 1st. It is insisted, that John Guión had no estate by the curtesy in the land in- controversy, because his wife had not at any time, either before, or during the coverture seizin in deed, or actual possession thereof. It is argued that the common law upon this subject remains in force in this state; that here, as in England, there are four requisites to an estate in curtesy, viz. marriage, actual seizin of the wife, issue capable of inheriting the estate, and death of the wife; and that these several requisites are alike necessary and indispensable; that Elizabeth Nuion, upon whom the title was cast by descent, on the death of her father, intestate, had, until actual entry upon the land, only a seizin in law, which was insufficient either to transmit the inheritence to her heir, or to constitute her husband tenant by the curtesy.

It is true, that by the common law, in descents of land which are cast upon the heir by the act of law itself, the heir has not plenum dominium, or full and complete ownership until he has made an actual entry upon the lands; and if he die before entry, his heir will not be entitled to take possession, but the estate will go to the heir of the person last seized; 2 Bl. Com. 312. This distinction between seizin in law and seizin in deed, it will be observed, applies only to cases where an entry Is necessary to complete the title; therefore, in England, when lands are conveyed by deed, or assurance, to which effect is given by the statute of uses, it is said by Blackstone, 2 Com. 238, the party is at once put into corporal possession of the ■land, without ever having seen it, by a kind of parliamentary magic. And our statute of descents of 1784, ch. 22, has been construed to have the same operation and effect — it transmits ■any “rights, title, or interest of the person dying intestate in and to any estate, or inheritance of land, to the heir, regardless of whether the ancestor were seized thereof in law, or in deed; and vests the heir, without entry, with as full and complete ownership of the land thus descended, as in England? after actual entry upon the land.” See Meigs R. 565.

But, aside from the effect given to this statute, it has been held in this state, and in several of the other states of this Union, that this rule of the common law must be taken with ■such construction and qualification as the actual state and condition of a large portion of the lands in this country absolutely requires. Indeed, as said in the case of Jackson vs. Johnson, 5 Cow. 97, it has not been adhered to in its literal ¡strictness, either in England or in this country. See 3 Atk. 469, 1 Cruise’s Dig. 110, 11, 12. A rigid application of the rule, according to its letter, would in many cases defeat and utterly extinguish the title of tenant by the curtesy. In the case of McCorry vs. King’s heirs, it is said, “that a seizin in law, or a constructive seizin, of wild or other lands, adversely possessed, will enable the owner to maintain trespass, is now well settled; and is, therefore such a seizin in the wife, whether claiming as heir, by devise, or by deed, as will make the husband tenant by the curtesy.” 3 Hum. 267. See also 4 Kent’s Com. 29, and cases there cited. The title, in judgment of law, draws to it the possession; and this constructive possession will continue until an actual adverse possession is clearly established. This does not dispense with, nor is it a departure from the substance or spirit of the common law rule; although the feudal reason upon which the rule is supposed to have been founded, has no application to this country.

We are of opinion, therefore, that Elizabeth Guión had such a constructive seizin in deed of the tract of land in controversy, during the coverture, as was sufficient, upon her death, to constitute her husband a tenant by the curtesy; and as would have entitled him to enter upon said land, at any time before the statute of limitations barred his right.

2. It is argued, that the complainant can have no relief in this case; because the right to the land, in remainder or reversion, set up in the bill, is barred by the statute of limitations, as is also the right of John Guión, as tenant by the curtesy.

The facts material to this point, are, that Burton claiming the tract of land in right of his wife, under the decree of partition, on the 1st of January, 1815, took possession of the land in controversy, in the lifetime of Elizabeth Guión, and dui’ing the coverture, there having been a previous possession from the year 1809, under an informal conveyance from the grantee to Hardy Murfree, the possession of Burton was of the entire tract, in exclusion of, and adverse to all other persons; under an assurance of title vesting the absolute fee simple interest in his wife, and such exclusive adverse possession has been continued, witlioufinterruption, to the present time. Upon thse facts the question arises, whether or not the complainant’s right in reversion, or remainder, is barred by the statute of limitations? We think it is. It is certainly true, as argued by the counsel of complainant, that if an estate by the curte-sy existed, and vested in John Guión at the time of the dissei-zin by Burton, the statute of limitations could not in any manner effect the rights of the complainant, so long as such estate continued to exist; because, during the continuance of the particular estate, the complainant could have no right of entry, or suit; and the statute only bars such persons as neglect to sue for the space of seven years after the right to enter, or bring suit, has occurred. But did an estate by the curtesy exist in John Guión at the time when the adverse possession of the land in controversy commenced? Certainly not. In the language of the books, the estate is initate on issue born; and consummate on the death of the wife. It cannot by possibility exist during the life of the wife; and may be defeated by alienation or death of the husband in her lifetime. At the time of the disseizin in this case, it was entirely contingent and uncertain whether the interest of John Guión would continue beyond the coverture. He was not then seized of a particular interest or estate separate from the fee simple estate in his wife. By mari’iage, the husband gains an estate of freehold in the inheritance of his wife, in her right, which may continue during their joint lives; and may, by possibility, last during his own life. He is not, however, solely seized, but jointly with his wife. The technical phraseology of the common law-pleaders, to express the interest of the husband in the estate of his wife is, “that husband and wife are jointly seized in right of the -wife,” Douglas, 329. If there be a disseizin during coverture, it is a disseizin of the entire joint estate, and they must jointly bring suit to recover the possession. The statute of limitations, in such case, will begin to run against both husband and wife, from the time of the adverse entry; and if suit may be not brought within the period required to form the bar of the statute, their joint right of action to recover the possession wall be barred. This question is not now presented for the first time; it arose in a case at Jackson two years ago, as I learn from my brother judges. In that case, which is not reported, it was held, upon much consideration, that a joint action by husband and wife, to recover the lands of the wife, of Which there had been a joint disseizin, was barred by seven years adverse possession. It cannot, we think, be held otherwise; because, the statute begins to run from the time when adverse possession commenced, against married women, in like manner as against persons free from disability; and they would be barred within the same period, but for the proviso, which declares, that they, or their heirs, shall or may have the right to bring suit within three years next after their coverture shall cease, but at no time thereafter. And when the statute attaches and commences running, no cumulative disability, or other event, can arrest, or suspend its operation.

It follows therefore, in this case, first, that the joint right of action against Guión and wife, (had the coverture continued) would have been barred at the expiration of seven years from the adverse entry by Burton on the 1st of January, 1815; second, that, (the wife having died shortly after the disseisin) the right of John Guion, whatever it may have been, was barred within the same period; and not only barred, but absolutely extinguished under the 1st section of the act of 1819, ch. 28; because the adverse possession of Burton, was by virtue of an “assurance, purporting to convey an estate in fee simple,” which, after seven years enjoyment, has the effect of vesting an indefeasible title in fee simple in himself and wife; third, that upon the death of Elizabeth Guión, the complainant, who, as her heir, succeeded to the inheritance had only three years thereafter, within which to bring suit. And that, although an infant at the time, he was bound to sue in order to save the bar; because, he is not within any exception of the statute; but is expressly excluded by the provision; that no cumulative disability shall prevent the bar; but shall apply only to such disability as “existed when the right to sue first occurred, and no other.” The word “death” in the statute obviously means, that when the right to sue first accrues to a person who, at the time, is under any of the disabilities mentioned in the proviso; and who dies during such disability, the heir of such person shall have three years after the death of his ancestor, within which to bring suit; and if he fails to do so, he is forever barred. The complainant in this case, although an infant, might have sued at any time after the right of John Guión was barred; the extinguished interest which had previously vested in John Guión, could have interposed no obstacle to his recovery.

The principles announced by this court in the case of McCorry vs. King’s heirs, 3 Hum. 267, to which we are referred by the complainant’s counsel, will be found to have no application to the case under consideration. In that case the husband made a conveyance of the lands of the wife — she not joining therein. And it was held that such conveyance was valid to the extent of the husband’s interest, and vested his life estate by the curtesy in his vendee. There the husband by his deed had estopped himself from sueing, and the wife could not sue alone; nor could her heirs, after her death, sue the husband’s vendee, during the continuance of the life estate; they were likewise estopped by the husband’s conveyance; and therefore, it was held very properly, that, as they had no light of entry, or suit, until after the termination of the particular estate, the statute of limitation did not apply. And for another reason of equal force, the statute could not apply in that case. The possession of the tenant for life was in contemplation of law, the possession of the remainder man. The particular estate and the remainder, constitute one and the same estate in law. The remainder man is seised of his remainder, at the same time that tenant of the particular estate is possessed of his estate. The possession of the husband’s vendee, therefore, in the case referred to, was consistent with, and subordinate to the right of the heir’s of the wife; was held under the same title, and, in law, could not be adverse thereto.

In this view of the case, it is unnecessary to discuss the question, as to the jurisdiction of a court of chancery to restrain the commission of waste, upon the case made in the bill; as we are of opinion the complainant has no title to the tract of land in controversy.

The decree of the chancellor, will, therefore, be reversed, and the bill dismissed with costs.  