
    Adair and others vs. Lott.
    Whether a husband acquires an interest as tenant by the curtesy in a remainder in fee granted to his wife, limited upon a life estate which does not terminate till after her death, quere.
    
    If, however, the estate for life be a mere equitable interest, the husband’s right,, at law, as tenant by the curtesy, is clear.
    In 1814 a widow, having sold her right of dower, appropriated the avails to the purchase of certain lands for her five children, among whom were D., a son, and A. a feme covert who died in 1815 leaving her husband living. The conveyance was directly to the children, and, at the time of its execution, therb was an oral arrangement between the widow and the grantees that she was to have a life estate in the premises. Accordingly, she entered and remained in possession till the spring of 1816, when she sold her right to D. who afterwards bought out the other grantees except A. D. and those holding under him, ever afterwards continued to possess the premises claiming to own the whole. The widow died in 1831, and the children of A. brought ejectment to recover their mother’s undivided interest; their father being still living. Held that the widow’s interest under the original purchase was, at most, a mere equity; and that a conveyance to her of a life estate could not be presumed.
    
      Held further, that A.’s husband, during her life, became seised of her share as tenant by the curtesy; and that this outstanding title was sufficient to bar the plaintiffs’ right of recovery.
    A parol agreement under which one enters upon land, may be given in evidence for the purpose of characterizing his possession, but is not admissible as showing a transfer of the legal title.
    The doctrine that, to enable the husband to take as tenant by the curtesy, there must he an actual seisin in the wife during coverture, applies only to cases where her title is not complete before entry—as, where she takes by descent or devise—and not where her title is acquired in virtue of a conveyance which, under the statute of uses, passes the legal title and seisin without the necessity of an entry or other act to perfect the estate in the grantee.
    The interest of a tenant by the curtesy is a legal estate in the land—not a mere charge or incumbrance; and hence it may be set up by a stranger in possession, in bar of a recovery by the heir.
    Courts will sometimes presume that a title once existing has been extinguished by conveyance, for the purpose of supporting a possession; but seldom for the purpose of overturning it.
    Accordingly, in ejectment, where neither the plaintiffs nor any one claiming under them had been in possession, and the defendant showed an outstanding title in the plaintiffs’ father as tenant by the curtesy, which accrued more than twenty years before suit brought; the court refused to presume that it had been extinguished, though no claim had ever been made in virtue of it.
    A plaintiff in ejectment can only recover upon the strength of his own title.
    
      Ejectment, for an undivided eighth part of one hundred and twenty acres of land in Lodi, Seneca county, tried at the Seneca circuit in November, 1841, before Mosely, C. Judge. From the deeds given in evidence by the plaintiffs it appeared, that Abraham Irvine in September, 1814, conveyed the premises in question to the following persons, to be held by them in the proportions annexed to their respective names, to wit, Drake Runyon and Lewis Runyon each one fourth part, Jane Irvine, Delia Adair and Margery Ellis each one eighth part. The other eighth was reserved by the grantor. In 1827 Drake Runyon conveyed to Lewis Runyon. In 1835 Lewis Runyon conveyed to John DeMott, who conveyed to the defendant, and he is in possession of the premises. The plaintiffs are the children and heirs at law of Delia Adair, and claim the undivided eighth which she took under the deed from Abraham Irvine in 1814. Mrs. Adair died in 1815, leaving her husband, George Adair, the father of the plaintiffs, who left this state soon afterwards and now resides in one of the western states. The difficulty which stood in the way of the plaintiffs was the estate for life of their father as tenant by the curtesy. To obviate this difficulty the plaintiffs proved by parol evidence that their grand father, Philip Runyon, formerly owned land in New Jersey, and after his death, dower was set off to his widow. She sold her right in that land, and the premises in question in this suit were bought of Abraham Irvine with the dower money of the widow. The deed was given to her children, and she was to have a life estate in the farm. The witness knew nothing about this purchase except what the parties had told her. The widow went into possession of the farm and continued in possession, claiming a life estate, until after the death of Mrs. Adair, the plaintiff’s mother, in 1815 ; and in the following spring the widow sold out her rightto Drake Runyon, who then took possession of the property. Since that time the possession has gone along with the paper title above set forth. Drake Runyon bought out all the other heirs except Delia Adair. The widow of Philip Runyon died in 1831. Neither Mrs. Adair nor her husband was ever in possession. The defendant objected against this parol evidence to prove the sale and purchase of lands', but the judge admitted it for the purpose of showing in what capacity the widow of Philip Runyon held possession, and to rebut the idea that George Adair was a tenant by the curtesy. The defendant moved for a nonsuit, which was refused. The defendant then requested the judge to charge the jury that the plaintiffs could not recover while there was a subsisting tenancy by the curtesy. The judge said, that if such was the fact, the plaintiffs could not recover until after the death of the husband of Delia Adair 3 but upon the facts in the case as to the possession of the premises by the grand mother (the widow of Philip Runyon,) and their mother (Mrs. Adair) not having been in actual possession during her life, he advised the jury to find for the plaintiffs for one eighth of the premises. Verdict accordingly. The defendant now moved for a new trial on a case.
    
      A. Gibbs, for the defendant.
    JV*. Hill, Jun. for the plaintiffs.
   By the Court, Bronson, J.

The first argument for the plaintiffs is, that under the purchase from Irvine in 1814, their grand mother, the widow of Philip Runyon, took an equitable estate for life in the land, and the grantees named in the deed took only a remainder in fee. And then as the life estate of the grand mother did not terminate until after the death of Delia Adair, the mother of the plaintiffs, there was no such actual seisin in Delia Adair as would entitle her husband to take as tenant by the curtesy—there being no curtesy in the wife’s remainder expectant upon an estate of freehold, though it is otherwise of a remainder expectant upon an estate for years. .(Co. Litt. 29, a ; Stoddard v. Gibbs, 1 Sumner 263 ; 2 Black. Com. 127 ; 4 Kent, 29, 30 ; De Grey v. Richardson, 3 Atk. 469 ; Stoughton v. Leigh, 1 Taunt. 402.) I do not think it necessary to inquire whether this rule of the common law prevails in this state; for the plaintiffs only allege that their grand-mother had an equitable estate for life, and we are in a court of law where the legal title must prevail. If we look at the legal title, it appears that Mrs. Adair took a present estate in fee in an undivided eighth part of the farm, and her husband, the father of the plaintiffs, is clearly entitled to a life estate in her share as tenant by the curtesy unless it be an objection to his claim that there wras no actual seisin or possession in the wife—a question which will be noticed hereafter.

It is said that we may presume a conveyance of a life estate to the grand-mother. But there is no foundation for such a presumption. We see that Irvine conveyed the "whole fee to others. And there is no reason for supposing that the grantees in that deed conveyed a life estate to their mother. The parol evidence, if it was admissible for any purpose, shows that there was a family arrangement, under which the land was purchased and conveyed to Drake Runyon and others to hold in certain proportions, with an understanding that the mother of the grantees should occupy the property as long as she lived. She entered and held a year or two, and then sold out her possession—or equity, if it amounted to so much—to Drake Runyon. There is not the slightest foundation for presuming that the grantees of Irvine ever conveyed any title to their mother.

If we look at the parol evidence, it proves too much for the plaintiffs’ case. Their grand-mother paid the whole of the purchase money to Irvine, and if this payment is not to be regarded as a gift of so much money to her children, the grantees in the deed, and if a resulting trust can be set up at law, the grand-mother took a fee in the land. She soon afterwards sold her right to Drake Runyon, and from him there is a complete chain of title down to the defendant. But the parol evidence was only admissible for the purpose of characterising the possession of the grand-mother, and not by way of making out a legal title.

It is said that George Adair did not take as tenant by the curtesy, because there was no actual seisin in the wife during the coverture. But the doctrine that there must be a seisin in deed in the wife, only applies in cases where her title is not complete before entry, as where she takes as heir or devisee, and not where she takes by a conveyance which passes the legal title and seisin of the land. (Jackson v. Johnson, 5 Cowen, 74, 97 ; and see Ellsworth v. Cook, 8 Paige 643.) Here the estate was conveyed to Delia Adair and others by a deed which had its operation under the statute of uses. It passed the legal title and seisin of the land, without the necessity of an entry, or any other act to perfect the estate of the grantees. They gave their mother a parol license to enter and hold for her life. But as there was no writing, she was at the most only a'tenant at will. Her possession was their possession, and so there was an actual, as well as legal seisin in the grantees.

It is then said that the interest of a tenant by the curtesy is only an incumbrance or charge on the land, which cannot be set up by a stranger to defeat the legal title ; and for this doctrine we are referred to Doe v. Pegge, (1 T. R. 758, note,) and Jackson v. Hudson, (3 John. 375.) But these cases do not bear the counsel out. The interest of a tenant by the curtesy is something more than a mere charge or incumbrance ; it is a legal estate in the land.

The only remaining argument for the plaintiffs is, that an extinguishment of the estate of their father as tenant by the curtesy should be presumed. His life estate could only be extinguished by a conveyance, and I see no ground upon which a grant by him to the plaintiffs can be presumed. Neither the plaintiffs nor any one claiming under them have ever been in possession. The defendant is in possession claiming the whole as owner. Presumptions are sometimes indulged for the purpose of supporting a possession; but not very often for the purpose of overturning it. In truth, there is no reason to suppose that the father of the plaintiffs ever parted with his life estate to any one.

'The plaintiffs can only recover -Upon the strength -of their own title, and they have no right to the possession so long as their father lives.

New trial granted.  