
    * The Lessee of Joseph Canby v. Robert Porter.
    The freehold-of an husband in his wife’s lands may be sold on execution.
    This is an Action of Ejectment upon an agreed state of facts,, from Warren county.
    The defendant is in possession of the premises by virtue of a deed, made since his marriage, and conveying to his wife, Thalia, an estate in fee.
    The plaintiff makes title by a regular sheriff’s sale, of the same lands, under a judgment rendered against Robert Porter. If Porter, holding the land in right of his wife, and after issue born, has an estate capable of being passed by a sale under execution, the plaintiff may recover.
    J. Wilton Williams, for plaintiff.
    The defendant was tenant by the curtesy, in right of his wife, Thalia Porter, of the real estate in controversy; and his interest therein as such tenant, was sold under execution at law, to satisfy a judgment against the defendant, in favor of the plaintiff’s lessor, who became the purchaser of the premises.
    The plaintiff contends that the estate was a legal one; that the defendant himself could have sold it; and that his vendee could have obtained possession thereof by ejectment. Well, if this is the fact, can not this same legal estate be reached by execution at law, and sold ; and will not the purchaser at such sale be invested with the same rights and remedies as the vendee obtaining his -deed immediately from the defendant himself? The defendant’s estate in the premises was not an-equitable one.
    Upon the following question, he cited authorities :
    As to what rights, generally, the husband acquires, by marriage, in his wife’s property ; 2 Kent’s Com. 110, et seq.
    
    *What constitutes tenantcy, by the curtesy ; 2 Black. Com. 126, [80 et seq.; 4 Kent. Com. 27 et seq ; 1 N. Y. Digest, 560. 5 Cow. 74, Jackson ex dem. Swartwout v. Johnson.
    What seizin necessary to constitute tenantcy by the curtesy; McLean, 476, et seq. ; Jackson ex dem. Beekman v Sellick, 8 J. R. 262 ; 1 N. Y. Digest, 560.
    “ If the assignee, or creditor, of the husband, who takes possession of the estate on a sale on execution of his freehold interest, commits. waste, the wife has her action against him, in which the husband must join ; for though the assignee succeeds to the husband’s rights to the rents and profits, he can not commit waste with impunity.” 2 Kent’s Com. 111, (in which the case of Babb et ux. v. Perley, 1 Greenleaf, 6, is referred to.)
    Right of the tenant by the curtesy, sold on execution. By the seizin of the wife in fee, of one undivided third part of certain premises, and the birth of a child alive, the husband became tenant by the curtesy, and then his interest was sold on execution. Schermerhorn and Clute, v. Miller et ux. 2 Cow. 439 ; 2 N. Y. Digest, 997.
    I believe it has been the uniform practice in our state, ever since its settlement, to sell the husband’s interest, acquired by marriage, in his wife’s real estate, as tenant by the curtesy, under judgment and execution.
   Lane, C. J.

We have been furnished with no argument by the defendant; but the plaintiff’s right to recover seems plain. For the interest of the husband is a legal estate : it is a freehold during the joint lives of himself and wife, with a freehold in remainder to himself for life, as tenant by the curtesy, and a remainder to the wife and her heirs, in fee. It is a certain and determinate interest, whose value may be easily ascertained by reference to well known rules. It is, in every sense, his “ land,” within the meaning of the statute, and liable to respond for his debts.

The doctrines applicable to sales, by execution, of lands in the possession of the mortgagor, have little bearing on the present case. 81] Those depend on the ambiguous relation of the ^mortgagor. To his mortgagee, he is a tenant at will only ; to others, he is the owner of the land, liable to the contingent burden of the mortgage. As no true, perfect, authoritative, binding estimate of the value of the incumbrance can be taken by the appraisers, the law forbids the inquiry, and admits of no sale except as of unincumbered property; Ely v. McGuire, 2 Ohio, 223, 224; Baird v. Kirtland and others, 8 Ohio, 21 ; Bank of Canton v. Commercial Bank, 10 Ohio, 72.

The effect of this rule is, to throw into chancery sales of mortgaged land, except where the purchaser is willing to encounter the risk of -the burden ; and, in such cases, the possession is at least a legal estate, which passes ; 18 John, 94 ; Gray v. Tappan and Wells, Wright 117.

But the sale of a freehold is incumbered with none of these difficulties. Its value is the complement of the value of the fee, after deducting the value of the remainder, the elements of computing which, as in ease of insolvent estates, incumbered by dower, are entirely within reach of the appraisers.

Judgment for plaintiff.  