
    Miller vs. Miller.
    CONVEYANCE. Operation of our Statutory deed made by Ivusband of land ¿he Joint properly of husband and wife — Statute of limitations.
    
    Our statutory deed does not operate — like the ancient feoffment — to pass the fee simple and turn all other estates into rights of entry or action. It operates— as a grant — to pass nothing but what the bargainor may lawfully sell. See Burrow, 92. Thereforea husband’s deed, acknowledged, or proved, and registered, of land in the joint seisin and possession of him and his wife, is not a discontinuance of her estate., -The bargainee’s possession is not adverse to her right any more than herliasband's was, but is consistent with her right, as was her husbancPs. Consequently the statute of limitations does not begin to turn the bargainee’s possession into title against her, till her discoverture, after which her title will be barred bv the adverse possession of her husband’s bar-gainee in seven, and notin three years.
    Ejectment in Franklin circuit court for three hundred and twenty acres of land on Bean’s creek in that county. Archibald Woods being seized and possessed of the premises, by indenture executed on the 2d of October, 1817, “in consideration of consanguinity, natural love and affection and one dollar to him in hand paid by Garland B. Miller and Mourning Miller his wife,” conveyed said premises to them in fee, they being his daughter and son-in-law. This deed was duly acknowledged and registered in Franklin county.
    On the 6th of May, 1827, Garland B. Miller, by his separate deed of that date, conveyed the premises to John Miller for the expressed consideration of thirty-one hundred and forty-nine dollars; and John Miller was put in possession. On the 20th of October, 1830, John Miller sold the premises for three thousand three hundred and eighty-four dollars, to Richard C. Holder, who gave his notes for the money, and took Miller’s bond, conditioned to convey the land to him whenever he paid the consideration. The possession was now transferred to Holder.
    In December, 1832, Garland B. Miller died, his wife, Mourning, surviving him.
    On the 8th of September, 1837, Mrs. Miller commenced this ejectment. Notice of the action was served on Richard C. Holder; and at March term, 1838, he and John Miller were admitted to defend instead of the casual ejector, upon entering into the common rule.
    At the June term the cause was tried before his Honor Judge MaRCHBanks and a jury of Franklin. The deeds and bond above recited were read to the jury; and they were respectively proved to cover the premises, and it was also proved that the defendants were in possession thereof at the commencement of the suit.
    His Honor charged the jury that the deed from Woods to Miller and his wife conveyed to them as one person the title to the land, which, upon the death of the husband continued in the lessor of the plaintiff; that the deed, notwithstanding the coverture, conveyed to her a present right; that Miller, the husband, might have leased, rented or assigned the land for any period not extending beyond the continuance of the marriage between him and his wife, and the assignee’s, lessee’s or tenant’s possession would not have been adverse to the right of the lessor of the plaintiff, but would have been consistent with it; and her cause of action would not, upon that supposition, have accrued till the expiration of the term of the lease, renting or assignment, — and consequently the statute of limitations would only begin to run from that time.
    But the deed of the 6th of May, 1827, from Garland to John Miller purported, his Honor said, to convey to the latter a fee simple in the land; that it could not therefore be considered as a lease or assignment of the premises for such time as Garland B. Miller had a right to lease or assign it; that John Miller’s possession, under the deed, would consequently be adverse to the right of the lessor of the plaintiff, and her right of action accrued at the moment of the commencement of such possession; and that, if John Miller, or his assigns had had seven years possession of the land, claiming under said deed, before the commencement of the suit, such possession would be a bar to the action, unless it was commenced within three years next after the discoverture of, the lessor of the plaintiff.
    January 23.
    
    The jury found a verdict for the defendant. The plaintiff’s motion for a new trial was overruled, whereupon she appealed in error.
    Taul for the plaintiff in error,
    insisted that the statute did not begin to run against her right until the death of her husband, at which time, by the operation of law, the estate was cast upon her. There is no principle better settled than that the statute does not begin to run until there is a cause of action. Cooke’s Rep. 318; 4 Bacon, 479, in note. The time to form the bar commences with the capacity to sue. Bradford vs. McLemore, 3 Yerger, 318; Dyche vs. Glass’ lessee, 3 Yerger, 379; Jfeddy vs. The State, 8 Yerger, 251; 4 Bacon, 479; The Commonwealth vs. McGowan, 4 Bibb, 63; 5 Littell, 312; .Sugden on Vendors, 343, 337; 2 Saunders, 338, note 9; Angel, 54, 55; 7 East, 299.
    Mrs. Miller having, according to these authorities, no right of entry, until the demise of her husband, consequently the statute if applicable to her case, did not begin to run until then. Authorities might be multiplied upon this point, but it is considered to be wholly unnecessary.
    2. At what time then did Mrs. Miller’s right of entry commence? The answer is at the death of her husband; The conveyance was made to them during coverture. Each was seized of the entirety. In other words, it was a conveyance to the husband during life, remainder to his wife on the contingency of her surviving him. 2 Kent, 111, 112; Taul vs. Campbell, 7 Yerger, 319. By marriage the husband acquires the usufruct of the freehold estates of his wife, &c. Reaves’ Dom. Rel. 27; Coke Lit. 351. If husband and wife are entitled to land, in right of the wife, of which they are dis-seized, and the disseizor dies and the lands descend to his heirs, the husband’s right of entry upon the lands is taken away. If the husband dies before the wife, her right of entry is not taken away. Coke Lit. 246; Reeves, 29. The conveyance of the real property of the wife by the husband operates only to convey his interest therein, although the deed should be of the fee, and the wife or her heirs may enter thereon on the death of the husband. Reeves, 121; 1 Bacon, 495.
    The defendants contend that three years will form the bar, under our statute of limitations. The saving of three years, in favor of femes covert is where their right had accrued, come or fallen during coverture; and then although seven years had elapsed, they are entitled to three years more. Mrs. Martin’s right did not accrue, come or fall until the death of her husband, ergo, she is entitled to seven years. Reeves, 121; 1 Bacon, 495. When the wife joins with the husband in the conveyance of her lands, which does not bind her; after the death of her husband, she may enter thereon without any more impediment than if she had never leased it. Reeves, 122; Roll’s Ab. 349. If lands be given to husband and wife, and the heirs of their bodies, and the husband alone levies a fine thereof, the wife may enter after his death. 1 Bacon, 495, in note; Jacobs Law Diet, title Discontinuance. Recovery suffered by husband alone is void. Id. CokeLitt. vol. 2, title Discontinuance; Liber, 3, c. 2, § 594.
    At common law, any alienation made by the husband of the wife’s land was a discontinuance. 1 Bacon, 496. But by statute 32 Henry VIII, no fine shall work a discontinuance. If lands be given to husband and wife, and the heirs of their two bodies, and the husband maketh a feoffment and dieth, the wife is helped by statute 32 Henry VIII, and so is the issue of their bodies. Jacob, title Discontinuance; 2 Kent, 111, 112; Runuington, 45. The husband cannot alienor encumber it so as to prevent the wife or her heirs from enjoying it after his death. 2 Kent, 112. The intervention of a particular estate will suspend the operation of the statute. Angel, 157. Where the husband conveys without the wife, the statute will not begin to run against her dower until the death of her husband. Angel, 157. In this State, the. statute does not run at all against a widow’s claim to dower. Guthrie vs. Otoerds heirs, 10 Yerger, 339. The reasoning of the court in this case will apply with all its force to the case now under consideration. Mrs. M. certainly bad no right of entry previous to the death of her husband, and consequently the statute could not be running against a right that did not exist. In a late case in Pennsylvania, the supreme court said that they could not assent to the doctrine that when the husband conveys without the wife joining, the statute of limitations runs during the coverture. Angel, 158; Calien vs. Motzer, 13 Serg. and Rawle, 356.
    James Campbell on the same side,
    argued, that by the common law, if a tenant holding an estate for life, or other less estate, makes a feoffment in fee, this was a forfeiture of the life estate, and he who was entitled to the reversion or remainder could enter upon the land. Hence, a feoffment in such a case did operate a disseizin, and the feoffee’s possession became immediately adverse to those that were to come in after the person holding the particular estate. But when a different mode of transferring the title to real estate was introduced by the deed of bargain and sale, or other conveyance operating under the statute of uses, the rule which had before prevailed was no longer applicable. The deed of bargain and sale transferred the title without livery of seizin; and when the bargainor made a deed for a greater estate than the interest he had to convey, such deed operated to transfer such interest and such only as the bargainor had to convey. The bargainee would then enter not as a trespasser, 'but he would enter rightfully under his deed, and would hold in conformity with it till the interest which his bargainor had to convey, and which was transferred to his bargainee, had terminated. 4 Kent’s Com. 80, et seq.; 2 Coke Lit. 415, §416, et seq.‘, 2 Bla. 274, 5; 2 Kent’s Com. Ill, 112; Jackson ex dem. Linebaugh vs. Sears, 10 J. R. 435.
    A grant even at the common law passes such estate as the grantor had to convey, because the estate which the grantor had to convey did not lie in livery, in other words, it passed without livery of seizin. 4 Cruise, 57, § 40, and the authorities there cited.
    In this State deeds operate under our statute of 1715, c. 38, precisely as the deed of bargain and sale operates in England. It operates to transfer the legal estate without livery or seizin. It operates as a grant at the common law, and the person making the conveyance is called, and properly too, the grantor or bargainor. Here, when the grantor conveys a larger estate than is vested in him, the deed or grant operates to transfer the interest of the grantor or bargainor, and the bargainee, when he enters, does so not by wrong, but by right. He does not enter as a trespasser, claiming under one who has forfeited his title, but he enters rightfully, claiming the possession under the deed of his bargainor or grantor,'and who had the right to transfer him the possession. What would a deed of bargain and sale be in this country without, the aid of the statute of uses or our own act of 1715? It would transfer no title, but a mere equity to the land. Our statute of 1715, like the statute of uses in England steps in and converts this equitable into a legal estate, and says that deeds made in conformity with the statute shall pass estates in land without livery of seizin. In other words, it shall pass such interest as the bargainor had to convey, for the very definition of the word estate, is such interest as the party conveying has in the thing conveyed. Our statute of 1715 does not narrow the operation of a deed of conveyance more than the statute .of uses, but it enlarges its operation. It was intended to give freer scope to the transfer of real estate than was even given by the statute of uses. It does away with certain technicalities which even the statute of uses required, and both statutes dispense with the necessity of livery of seizin. Corporeal as well as incorporeal hereditaments in this State lie in grant and not in livery. They are transferred by grant or deed and by that alone.
    Let us apply these principles to the present case. Garland B. Miller and wife had the estate in controversy conveyed to them by Woods. Garland B. Miller, in the lifetime of his wife, conveys the land to John Miller by deed, without his wife joining. John Miller took possession under this deed- Garland B. Miller, during the life of himself and wife, had the right to the land, and could rightfully transfer his possession to John. John when he entered did so not as a trespasser. He did not enter under a deed which conveyed no title, under a deed which forfeited the whole estate, which was wholly void, and which gave Mrs. Miller of Garland B. Miller and wife the right of 'immediate possession, the right to sue John Miller and recover the property; but when John Miller entered, he took possession under a deed which transferred the present estate, and the contingent fee simple which Garland had in the event he survived his wife. Had the wife died first, the estate in John Miller under his deed from Garland would have been complete. The deed from Garland in that event so far from operating, under our law, to transfer no estate, would have vested in him an absolute title in fee simple. The case of Jackson on the demise of Sinsabaugh vs. Sears, 10 Johnson’s Rep. 435, fully sustains the principles here contended for. And if we are correct in these positions, of which, I think, there can be no doubt, then no right of action accrued against John Miller or his tenant, until the death of Garland B. Miller; until then the right of possession was in John Miller, and of course the statute of limitations could not begin to run against Mrs. Miller until the death of her husband; and seven years not having elapsed after that time, and before the commencement of this suit, she has the right to recover the land in controversy.
    F. B. Fogg for the defendant,
    said that Miller and wife were jointly .seized, not of moieties but of entireties. 7 Yerger, 319; 1 Roper, 52-6; 2 Black. 182; 2 Coke Littleton, 326 a. The wife has an inheritance even in the lifetime of her husband. 3 Coke, 142, 140, Beaumont’s case; 2 Inst. 342; 1 Roper, 56. See 1 Roper, 3, as to the interest the husband acquires in the wife’s property by marriage. He is tenant of the freehold in his own right, and the wife cannot sue without him, and yet the statute runs. Angel, 141. Jf husband sells the wife’s land, he is estopped from suing; if a third person sells and he refuses to sue, she cannot sue, and yet the statute runs. In this case, the books say that by the death of the husband, the wife acquires no new estate, nothing she had not before. It is the same estate, the entirety which she had before. The entirety does not first vest by the death of the husband. 9 Co.-140; 2 Preston on Abstract of Titles, 39 to 57- Here is no case of a particular estate.
    It is true the deed of the husband is void or inoperative as against the wife surviving, but this does not prevent the effect of an adverse possession during coverture. To use the words of Judge Swift in Buncevs. Wolcott, 2 Connecticut Reports, 27, “Nor is the proposition correct, that the statute never begins to run against a person under a disability. Suppose the party claiming is an infant when the title accrues; if fifteen years (the period of the statute of limitations in Connecticut) run during his infancy, he has but five years, after he comes of full age, to make his entry. This clearly shows, that the statute operates against him during the disability. Indeed the statute always begins to run against a man the moment he is disseized, whether he is under a disability or not.”
    The language of the statute is susceptible of but one construction. That a person who is the owner of land at the time of disseizin, if laboring under disability of coverture, shall have three years from the time she becomes discovert. See Grisieold vs. Butler, 3 Connecticut Reports, 144. A deed purporting to convey an estate in fee simple, registered and possession taken under it, operates as a disseizin. 5 Mass. Reports, 352; see Greneley’s case, 8 Reports, 72. “If she surcease her time, and five years pass after the death of the husband, she is barred of her right, and by consequence she cannot enter.” Dyer, 72, b; 2 Preston, 50, 51. .
    The wife’s right and title first accrued during her coverture by the deed to her and her husband. This deed operated as a disseizin, and as he would not or could not sue with her during coverture, the statute gives her three years after discover-ture to bring her suit. Ha\ ing omitted to sue during that period she is forever barred.
    Where during coverture, alease for years is granted to the wife, and the husband survives, an adverse possession commencing during coverture may be treated as adverse to the wife. Doe ex dem. Williams vs. Williams, 5 Neville and Manning, 434.
   Reese, J.

delivered the opinion of the court.

If during coverture the husband, by deed purporting to convey the fee, alien the land of the wife, or land jointly owned by himself and wife, and the bargainee enter into possession, is the wife barred by the statute of limitations, unless within three years after the death of her husband, she commence her action; or is she barred only by'seven years adverse possession, after her discoverture?

It is admitted by those who insist upon the bar of three years, that neither the wife alone, nor the husband'and wife together, have, in the case stated, any right to enter or any cause of action during the coverture; and it is conceded, that if the deed of the husband had in the case before us, conveyed only the interest of the husband during the marriage, the wife would have been allowed seven years after his death in which to bring her suit. It is, then, the form of the husband’s deed, as purporting to convey a fee, which is supposed to produce the evidence. A deed, under our act of 1715, when registered, operating, it is said, to convey the estate, not under the statute of use, but by its own proper force as an ancient deed of feoffment, possesses thp efficacy ascribed to that assurance, and is therefore a disseizin of the wife, in the sense in which that term is used in the old common law books.

The legal existence of the wife, during marriage, being suspended, or the husband containing within himself the entire legal existence of both, the effect of the relation was, that if the husband by fine or feoffment alien the lands of the wife, owned by her in her own right, or jointly with him, she could not during the coverture enter, nor could she enter upon the death of the husband, but was put to her action cui in vita in the nature of a writ of right. Littleton, § 594.

But this discontinuance of the wife’s estate, produced by the fine or feoffment of the husband, was subsequently to the time of Littleton, altered by the statute of 32 Henry 8, by the purview of which statute, Lord Coke informs us, that the wife and her heirs, after the decease of her husband, may enter into the lands and tenements of the wife, notwithstanding the alienation of the husband, and this, as well in the case where the lands were jointly held by husband and wife, as when the fee belonged to the wife alone. Subsequently, therefore, to this statute, the wife and her heirs had twenty years, after the death of the husband, in which to enter, or bring a possessory action, except in the single case of a fine levied by the husband with proclamations, when the wife must enter and avoid the estate of the conusee within five years after the death of the husband, or else she is barred forever by the statute of 4 H 7; for, says Lord Coke, the statute of 32 H. 8, “doth help the discontinuance, but not the barre; and the statute speaketh of a fine, and not of a fine with proclamations.” Com. of Coke, upon § 594, Liber, 3, cap. 11.

Subsequently, therefore, to the 32 Henry 8, the wife, with the single exception above stated, might after the death of the husband, within twenty years enter, or bring her pos-sessory action, and avoid the fine or feoffment of the husband made during the coverture; and of course, in this state, even if it were conceded that a deed of the husband made under the act of 1715, and registered, has the efficacy of the ancient deed of feofment before the statute H. 8, and would operate the disseizin and discontinuance of the wife’s estate, still, by virtue of that statute, the disseizin and discontinuance are avoided, and she may enter or bring her possessory action within seven years. For it will scarcely be contended by those, who ascribe to a deed, under our statute, the efficacy of the ancient deed of feoffment, that the statute of 32 H. 8, is not in force here, for the effect of that would be, as we have no writ of cui in vita, &e. or writ of right, that the husband’s deed would operate a disseizin and discontinuance of the wife’s estate, absolutely and forever. This simple view of the subject is clearly decisive of the case before us, and we might well terminate at this point, our consideration of the question.

2. But the efficacy ascribed in ancient times to a deed of feoffment was founded upon feudal principles which the courts in England now declare to have lost their operation, and to have no further existence, and they deny to a feoffment its ancient and dangerous efficacy.

In the great case of Taylor ex dem: Atkyns vs. Horde & others, 1 Bur. Rep. 60, which was much considered and decided, “with infinite ability,” as Mr. Butler admits, even when in his own annotations upon Coke, he is impugning its conclusions, Lord Mansfield says, “that except the special case of fines with proclamations, which he observed, stands upon distinct grounds, and the construction of the statute, 4 H. 7, c 24, for the sake of the bar, he could not think of a case where the true owner, whose entry is not taken away, might not elect, by choosing a possessory remedy, to be deemed as not having been disseized.” Bur. 112. And the judges of the King’s Bench, in the opinion delivered by them in 1784, in the same case, express themselves still more strongly on this head. “They say, that “where the books speak of feoff-ments in fee by tenants for years, and that the fee simple passes thereby, it is to be understood of those feoffments of old, attended with livery, and actual transmutation of the possession from one man to another; that feoffments from having been the only conveyance of land for a long term of years, have languished into mere form, and are nothing now more than a common conveyance; that their grandeur and efficacy is lost; and that without actually transferring of the estate from one man to another, they mix with the community of all other assurancess that the name of these feoffments and the remembrance of them, remain and survive them however imperfectly, after the practice of making them, and consequently their solemnity is quite at an end.”

This decision not only did not meet the sanction, but received the severe criticism of Mr. Butler, Mr. Preston, and other property lawyers in England, who are wont to cast a long and lingering look towards the departing glory of the ancient learning, to the analysis of which they have devoted so much time, toil and talent. In this censure they are joined by Chief Justice Paksons, of our own country, whose professional character was strongly marked by their own sturdy features, who had drank deeply at the same fountain of ancient learning, and who, perhaps, largely participated in their feudal sympathies.

But notwithstanding the opposition of property lawyers in elimentary disquisitions and in discussions at the bar, the opinions of Lord Mansfield, and the judges of the King’s Bench in Taylor vs. Horde, have received the subsequent confirmation of the English courts. In tho case of Jerrett vs. Weare & others, 3 Price 575, Exchequer Reports, argued by Mr. Puller and Mr. Preston, Graham, Baron, says, upon this question, that “a load of knowledge” had been brought forward in the argument, but the principle of the case of Taylor vs. Horde, rested upon grounds which were not to be shaken. And in the case of the Lessee of Maddock vs. Lynes, 3 Barn. & Cre. 306, Abbott, C. J. (since Lord Tenterden,) said, there was so much good sense in the doctrine laid down by Lord Mansfield, in the case of Taylor vs. Horde, that he should be sorry to find any ground for saying it could not be supported. Holroyd, J., said, “that the passages cited from Littleton & Coke, upon the general nature of disseizin are considered by Lord Mansfield to apply to disseisin by election.” He adds, “that the greatest mischief might arise if such conveyances were to operate against parties really interested.” And he remarks, “that the nature of a feoffment and disseizin are materially altered since the time when Littleton wrote;” and some of the judges in that case, which was decided so late as the year 1824, seemed to question the authority of the case of Taylor vs. Horde.

So that the conclusion of Chancellor Kent seems to be well founded, that the good sense and liberal views which dictated the decision in Taylor vs. Horde, seems to have finally prevailed in Westminster Hall, notwithstanding the strong opposition which that case met with from the profession. And he adds the sanction of his high authority to the principle of that decision, byremarking, “that the courts will no longer endure the old and exploded theory of disseizin. They now require something more than mere' feoffments and leases to work, in every case, the absolute and perilous consequences of a disseizin in fact.” 4 Kent’s Com. 475, first edit.; see also 10 John. Rep. Jackson vs. Sears, 435.

But if this controversy between the courts, struggling under the guidance of good sense and liberal principles, to escape from feudal shackles, and the property lawyers fondly and strongly clinging to them, had terminated, — or, being renewed, should hereafter terminate differently, we are, and will be, unaffected by the disastrous result.

The object of our act of 1715, as it seems to us, waste abrogate and escape from the effects and consequences, as well as the forms and ceremonies of attornment, livery and seizin, &c. And if, as has been, we think, correctly determined, 2 Yer. R. 204, that though the title under, our statute does not, on the one hand, pass by operation of the statute of uses, but by deed registered, yet still, on the other hand, such deed does not like an ancient feoffment work a disseizin. To do this, the statute in question requires not only a deed, but seven years adverse possession under it.

On every ground, therefore, we think, that judgment should, be given for the plaintiff in error.

Let the judgment of the circuit court be reversed, and a new trial be had in the case, when the law will be charged in conformity to this opinion.  