
    Walter S. Carr, Appellant, v. John Charles Anderson, Respondent.
    
      Tenancy by the curtesy — actual entry necessa/t'y to the wife’s seisin—the rule that land passes at once by descent is not applicable to lands devised■—• a devisee is presumed to have title.
    
    In an action brought to procure the vacation of a judgment which decreed that the last will and testament and codicil of John Anderson, deceased, the father of the defendant, were valid instruments, and which enjoined the plaintiff, who was the husband of a daughter of John Anderson, from attacking them, it appeared that John Anderson died in November, 1881, leaving a will admitted to probate in March, 1883, by which he devised all his real estate to the defend- . ant. John Anderson’s daughter,, the wife of the plaintiff, survived her father less than two months, dying in January, 1883,' and leaving her surviving the plaintiff, her husband, and a daughter, Mary Maude Watson. The latter, Mary Maude Watson, subsequently, in May, 1884, brought an action to recover the share of her mother as heir at law of John Anderson in certain real estate, in which she succeeded.
    Thereafter, the defendant in the present action began an action against Mary Maude Watson to establish the will of John Anderson as one of real estate, in which action a settlement was effected between the defendant and Mary Maude Watson by which the defendant paid her a large sum of money, and also the fees of her counsel, and as a part of this settlement, and upon the request of Mary Maude Watson the plaintiff executed the consent under which the judgment sought to be vacated was entered, being advised by counsel, at the time when he executed the consent, that he had no tenancy by the curtesy in any part of John Anderson’s real estate.
    In .the present action the plaintiff alleged that the advice of his counsel in this particular was false and fraudulent, and the product of corrupt and unlawful pressure brought to bear upon such counsel by the defendant.
    
      Held, that this claim was untenable;.
    That an essential element of a tenancy by the curtesy exists in the fact that the wife had actual seisin of the lands during coverture, based upon an actual entry upon the lands — one which requires or gives an occupation as a demonstrative thing;
    That as the wife of the plaintiff never made an entry upon the lands in question, the plaintiff had no tenancy by the curtesy in her share;
    That the rule that real estate passes under the statute of descent at once and absolutely to the heir, did not apply to this case;
    That a person in possession of land devised to him is in the same position as a grantee in possession under a deed, and presumptively has the title.
    Appeal by the plaintiff, Walter S. Carr, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 20th day of November, 1895, upon the decision of the court rendered after a trial at the . Kings County Special Term dismissing the plaintiff’s complaint apon the merits.
    
      Josiah T. Marean, for the appellant.
    
      Thomas M. North, for the respondent.
   Brown, P. J.:

On January 21, 1888, in an action wherein John Charles Anderson, the respondent, was plaintiff and Walter S. Oarr, the appellant, and others were defendants, upon the Avritten consent of said Oarr, a judgment was duly entered, Avherein it Avas adjudged that the last will and testament and codicil of John Anderson, deceased, the father of the respondent, had been duly executed and were valid instruments, and the appellant was perpetually enjoined from impeaching said will or codicil, or otherwise making any claim in opposition thereto.

The object of this action is to procure the judgment so entered to be vacated and set aside, upon the ground that the appellant was induced, by the false and fraudulent advice of his counsel, to consent to the entry thereof.

We have carefully read and considered the argument of the learned counsel for the appellant, wherein he contends that the consent to the entry of the judgment against his client was the result of false advice given to him by the counsel, then acting for him, in relation to his rights and interests in the land of which John Anderson died seized, and that such advice was the product of a corrupt and unlaAvful pressure brought to bear upon such counsel by the respondent, and that consequently the consent Avas obtained under such circumstances as entitles the appellant to be relieved therefrom. That argument has not convinced us of the merit of the appellant’s case, and we concur in the conclusion of the trial court that the evidence fails to sIioav that the execution and delivery of the consent by the appellant was procured by' any misrepresentation or concealment, and that it was not the result of any ignorance of the facts or law applicable to the case.

John Anderson died in November, 1881, leaving a last will and testament, which was admitted to probate in March,. 1882, wherein he devised all his real estate to the respondent. He left surviving him five heirs at law, one of whom was the wife of the appellant., Mrs. Carr survived her father less than two months, and died intestate in January, 1882, leaving surviving her her husband and one daughter, Mary Maude Watson. In May, 1884, Mrs. Watson, claiming as heir at law of John Anderson to be entitled to the possession of one-fifth of certain land in New York, known as the Plaza lots, of which John Anderson died seized, brought an action of ejectment against certain grantees of the respondent to recover possession thereof. This action involved the question as to the validity of Anderson’s will, and ultimately resulted in a judgment in favor of Mrs. Watson.

Thereafter an action was commenced by the respozzdent against Mrs. Watson, the appellant and others, to establish the said will as a will of real estate, and such .proceedings and negotiations were had therein that in September, 1887, while an appeal was pending in the ejectment action, a settlement between the respondent and Mrs. Watson was effected, by which the respondent agreed to and did pay to Mrs. Watson the sum of $50,000, and to her counsel his bill for services and expenses amounting to. upwards of $22,000. As an essential part of such settlement and upon the immediate request of Mr. Watson, acting in behalf of his wife, the appellant executed and delivered the consent upon which the judgment now sought to be set aside was subsequently entered. It appears from the findings of the trial court that since such■ settlement was made, various-parcels of land in the city of New York, of which John Anderson died seized, have been sold by the respondent to bonafide purchasers for large sums of money, and that upon said lots have been erected large and costly buildings, and that said purchasez’s took title thereto with knowledge of and in rehazme upon the probate of said Johzz. Amder1 son’s will and the judgznent which the appellant seeks in this action to' have set aside. At the foundatiozz of the claim which the appellant zzo'w znakes lies the assertiozi that, by reason of the in.validity of John Azzderson’s will, he became possessed upon the death of his-wife of an estate by the curtesy in an undivided one-fifth of the land of which Johzi Andez’son died seized. The learned counsel for ■ the appellant does not appear to contend for the absolzite truth of this proposition, nor am I able to find in the record that he requested the court at the trial to rule upon it. The findings of the trial court, which were made upon the appellant’s request, were that his claim to curtesy was one of substantial value, and' that the value of an estate for his life in real estate was about fifty per cent of the fee value thereof. But these facts the appellant knew before he executed the consent to the entry of the judgment against him, and he was advised by able counsel, who undoubtedly believed that his opinion, that the appellant possessed no estate by the curtesy in any part or share of John Anderson’s real estate, was a correct statement of the law.' This advice the appellant acted upon, and if he had not acted upon it, his daughter, whose interests he appears to have sought to protect and maintain, could not have successfully prosecuted her suit in ejectment or have brought about the settlement made with the respondent.

It is quite apparent, therefore, we think, that the appellant’s application to set aside the judgment to which, under the circumstances, he gave his consent, should receive very little consideration, unless the court is satisfied that the advice given him and upon which he acted was erroneous, and that upon the assumption of the invalidity of John Anderson’s will he did possess an estate by the curtesy in one-fifth of the land of which said Anderson died seized. To set aside the judgment and permit the appellant to bring actions against the present owners of the land in question and therein seek to establish his rights and estate, would impose an unjust expense upon innocent parties and cast an unwarranted cloud upon their titles.

The proper place to settle the plaintiff’s rights is in an action ■ against the present defendant. We have no difficulty in reaching the conclusion that the appellant had no estate in the land in question. Tenancy by the curtesy was a common-law estate, and it has been adopted in this State without modification. Our Statute of Descent provides that the estate of a husband by the curtesy shall not be affected by any of the provisions of that chapter. (1 R. S. 754, § 20.)

The appellant’s claim must, therefore, be tried by the common-law rule applicable to such an estate.' All the elements of such an estate exist in the appellant, except seisin of his wife during coverture.

In order to entitle a husband, to curtesy the wife must have had actual seisin of the lands during coverture. . Constructive possession of the wife or a bare right to possess will not support the estate. (1 Washb. on Real Prop. [5th ed.]: 180, ¶¶ 24, 25; 4 Kent’s Comm. 29, 30; 2 Black. Comm. 127; Willard on Real Est. [2d ed.] 58 ; Hilliard on Real Prop. 111.)

■ Actual seisin or actual possession, as distinguished from constructive possession or possession in law, has been defined to be one based upon an actual entry on the land and one which requires or gives an occupation as a demonstrative thing. (Churchill v. Onderdonk, 59 N. Y. 134; Boylston v. Wheeler, 61 id. 521.)

Washburn states the general rule to be that, if the estate be such that there may be an entry made upon it, there must be such an entry during coverture in order to give the husband curtesy. (Vol. 1, § 25.)

■ To the same effect see Coke upon Littleton, 29 (a) *558; .Bacon’s Abridgment, Title Curtesy C. 2; 4 Comyn’s Digest, Title Estates D. 2.

In this State it was said by Judge Bronson in Adair v. Lott (3 Hill, 182) that this doctrine did not apply where a wife took by deed, but did apply where she took as heir or devisee. (See also, Pond v. Bergh, 10 Paige, 140; Ferguson v. Tweedy, 43 N. Y. 543.)

The common-law rule was • well-settled that an heir’s title- to the real estate of his ancestors was not complete until entry. If the heir died before entry his title was defeated and the inheritance went to the heirs of the person last seized. If a wife claimed land by devise or descent and died before entry, the husband did not have his curtesy. (4 Kent’s Comm. 30 : Jackson v. Johnson, 5 Cow. 74.)

This rule has been modified in other jurisdictions by statute, ■ but in this State is still in force.

There are exceptions to the rule which requires an entry on land to complete an heir’s title, as in the case of wild and unoccupied lands, but there is no similarity between such lands and the land involved in this action. Actual entry was always necessary to complete an heir’s title to land so situated that an entry could be made upon it, and this rule is particularly applicable to city property. The argument, therefore, that the lands in suit are to be likened to wild lands cannot be sustained. The complaint alleges, and the court found as a fact, that Mrs. Carr never made an entry upon the lands, and this fact is conclusive upon the appellant’s right to curtesy. The learned counsel for the appellant does not question of course the general rule which I have referred to. He meets it by reference to the Statute of Descent under which he asserts that real estate passes at once and absolutely to the heir. In a strictly legal sense this statement is accurate. Applied to a case of intestacy and where the intestate’s land was not held adversely, it is undoubtedly true.

And upon the judicial determination of the invalidity of a devise the heir may be correctly said to have had title from the date of the death of his ancestor. But under our statute every estate in land which is descendible may be devised, and it is only where land has not been devised that it descends to the heir. A devise of land establishes a title in the same manner as a deed, and a will of real estate is sometimes spoken of as a statutory conveyance. It may be introduced in evidence as proof of title either to recover or defend the possession of property. (Norris v. Norris, 32 Hun, 176.)

For this purpose it is not necessary that the will be admitted to probate, but a surrogate’s decree admitting it to probate is prima facie evidence of its validity. (Code Civ. Proc. § 2627; Corley v. McElmeel, 149 N. Y. 228.)

A person in possession of land devised to him is in the' same position as a grantee in possession under a deed, and presumptively he has the title. But the appellant’s claim does not depend upon these considerations. The estate he claims depends upon the technical rule of the common law. The fact that Mrs. Carr never was actually and in fact in possession of any share in the lands devised to the respondent is fatal to the appellant’s case.

The judgment must be affirmed, with costs.

All concurred, except Bartlett, J., not sitting.

Judgment affirmed, with costs.  