
    Rochon v. Lecatt.
    í. A plaintiff claiming as tenant by the curtesy, may recover possess;on of the premises, in the ordinary form of an action of trespass to try titles
    2. A previous possession with claim of title, though for less than twenty years, with a descent east, or devise, is sufficient prima fade evidence of tule >n the wife, to sustain the claim "f the husb.md to cur-tesy ; and is sufficient to recover m ejectment against a mere trespasser.
    This was a case of trespass to try titles, brought to recover a lot in Mobile on the same title as in the last c tse ; and was tried at the same time. The pleadings were in the usual form. Lecatt recovered in the Court below, possession of the lot, and $612 damages; and Nannette Rochon, the defendant, appealed, and assigned for error the decision of the Court below, as shewn by her bill of exceptions, as follows:
    The plaintiff, Lecatt, give in evidence the will of Thomas Surtill, dated the 24th September, 1812, in which he enumerated the lands and lots he claimed as his property, and devised all his estate, real and personal, to his two children and wife, A m Surtill; who subsequently intermarried with the plaintiff, and under whom the plaintiff claims as tenant by the curtesv. He proved that Thomas Surtjll had been several years in possession of the premises claimed, and that he died in possession thereof, and that said Ann, after her intermarriage with him, was in possession, and that the two children above mentioned died in her lifetime, in this country, and that there were no blood relations to said Ann, known. He also proved the death of the said Ann, and issue by her during his coverture with her, and that the defendant was in possession thereof at the time of the institution of the suit. He offered no other paper title but the said will. Tne defendant relied on her possession onlv. On this evidence, the defendant prayed the Court to instruct the jury, that the plaintiff had not pr >ved and made out such "an estate in his wife as would constitute him n-nmir by the curtesy; which the Court declined, and cba’ge : the jury, that if they found the facts to be as giv en in evi® ¿erice, that the plaintiff had made out such a title as ere»1ated him tellant by the curtesy; and that they should find for the plaintiff.
    Ache, for the appellant.
    
      
       The question, what length of possession unaccompanied by title, will justify a recovery in ejectment, does not arise'in this case. The law governing ejectment does not apply ; ejectment may be supported on a mere tenancy for years. The only question to determine is, what estate the wife must have in the premises, out-of which a tenancy by the curtesy can be carved ? and whether the wife of Lecatt had that estate?'
    It will be insisted that Surtill, under whom the claim is derived, having had no paper title, could have had no higher estate than his several years possession would give him; and could have ttansmitted no other to his de-visee ; and that if the possession proven does not amount to a fee simple, or fee tail estate, a tenancy by the curtesy'' could not he formed out of it, and consequently the plaintiff should not have recovered.
    The plaintiff, Lecatt, did not make out proof of the-principal facts necessary to constitute a tenancy by the-curtesy, that is : 1st A seizin in his wife, of a fee simple* or fe< tail estate in the premises, at any time during his coverture with her. 2nd. That he himself was a citizen of the United States, so as to enable him to take as tenant by the curtesy. 
       The Supreme Court of the United ®tates have determined, that a foreigner cannot inherit or take lands by operation of law ; therefore, one who claims a tenancy by the curtesy, must shew he is a citizen, and that he is capable to acquire such a right.
    The judgement should be reversed also, because, the appropriate remedy' has not been pursued. The law of ejectment does not apply, and the action of trespass to try titles is therefore not the proper action. In Fitzher-bert’s Natura Brevium, 
       the form of the writ allowed bylaw to the claimant of a tenant by the curtesy is given, and in Paine’s case, 
       the mode of pleading peculiar to such cases, and the necessity of proving certain facts on the proof of which the right depends, is shewn, and the form of a declaration is given; the translation or which is as follows : “ For that the aforesaid A. G. was seized of' the aforesaid tenement in her demesne as of fee, and being thus seized, took J. W. to husband, whereby the, said .1. and A. became seized of the afoiesaid tenement* ryith the appurtenances in their demesne, as of fee in sight of the said A. and they being so seized, had issue between them, and afterwards the aforesaid A. wife of the aforesaid J. died, and the same J. survived her, and kept himself in the aforesaid tenement, and was thereof •seized in his demesne as of free tenement, holding it by the law of England.”
    In this form of pleading, all the allegations are made, the proof of which gives the right. If the allegations are not made, the proof of them cannot be received; for the allegata and probata must correspond. In the case before us, the pleadings contain no allegation whatever of the factstobe proved,and therefore is unprecedented. This Court does not sit to form precedents, but to follow those already formed. It is contrary to the principles of the action of trespass to try titles, that a recovery should be had in a suit by the claimant of curtesy. In that action, the subsisting legal title alone prevails, and no other. It is emphatically an action to try titles. The claimant of curtesy has no title, until by proof of facts in pais, he creates it, and makes those facts a matter of record. The-writ which the law has given him to effect that object, is that of quoil ei deforceat, as stated in Fitzherbert. This writ-affords him an ample remedy, without, by the judgement he expects, jeopardizing the right of others. In it he alleges all the facts on which his right depends, and on proof of them, obtains by his judgement his whole right, but nothing more. Ejectment will not lie for dower until the light is established by the facts necessary to its existence in the appropriate action, because the law casts the freehold on the heir immediately on the death of the ancestor; 
       for the tenant has no estate until assignment. By analogy and parity of reasoning the same rule applies to the claimant of curtesy.
    Salle and Kelly, for the defendant in error.5 
    
    
      
      see arguments <*se.cl>leceilms:
    
    
      
      *oó"^eás. Dcoke cruisí 106% 8 107, $ 10 in,’ 24ami27,i2i, i273.' cull?™! Koperou^iroja S7-
    
    
      
      ¿5 Page 365.
    
    
      
      4 Coke, 6
    
    
      
      n3* jSSfim
    
    
      
      s<® arguments m the preceding
    
   By THE COURT.

The judgement was affirmed. The opinions delivered in the preceding case apply to this; the two causes having been tried at the same time, and being on the same title.

Judge Ceenshaw dissenting.

The Chiee Justice not sitting.  