Watson and wife against Watson, 10 Conn. 77

Daggett, Ch. J. The plaintiffs’ title is derived from John Bliss, who died intestate, leaving Ann Watson, one of the plaintiffs, his sole heir. John Bliss obtained the land, by devise of his father, Ehenezer Bliss, in whom the title was vested until his death, as is agreed by the parties.

The defendant insists, that his title is well derived from the will of the late John Watson sen., who became well seised, by purchase of and a deed from Anne Bliss, executrix of the last will and testament of the aforesaid Ehenezer Bliss, by virtue of an order of the court of probate of the district of Hartford, which, at that time, embraced the demanded premises. The plaintiffs insist, that this deed is not valid ; first, because of a defect appearing on the face of it, as it did not show the order of the court of probate, nor, of course, any authority to sell.

They, therefore, contend, that the demanded premises passed under the will of Ehenezer Bliss to John Bliss, and thence came, by descent, to the plaintiff, Ann Watson, wife of the other plaintiff, John Watson. This position brings directly into view the question, whether the deed of Anne Bliss, the executrix of Ehenezer Bliss, to John Watson sen., be a valid instrument of conveyance.

The deed expresses her authority thus : “ I, Anne Bliss, of East- Windsor, executrix of the last will and testament of Ehenezer Bliss, of said East- Windsor, for and in consideration, &c., do, by these presents, and in conformity to an order of the honorable court of probate of the district of Hartford, dated the 24th day of March, 1786, me thereto directing and empowering, give, grant, bargain, <fcc. to John Watson, (fee.” The objection to this deed rests on the authority of Lockwood v. Sturdevant, 6 Conn.

Rep. 373. and the opinion of the court, as given by the late Chief Justice, as expressed in p. 386. of the same case. It is there said, “ that the authority, by virtue of which an administrator is empowered to sell and convey estate, must appear on the deed of conveyance, and with such certainty that the act done shall visibly be warranted by the power conferred.” The first case cited in support of this position of the learned Chief Justice, is Rex v. Austrey, K. B. East. T. 1817. 3 Stark. Ev. 1198. In 1 Phill. Ev. 416. the same principle is advanced, and the same authority referred to.

The doctrine there laid down, is, “ that wherever a power is given to particular persons, to do a written act, in a particular manner, or under particular circumstances, whether it be to parish officers or magistrates, as to grant certificates, under which, if duly executed, other persons, especially public officers, are bound to act, or to grant warrants, or make orders, there, their authority must appear on the instrument itself.” “ Hence where the question was, whether a certificate signed by two church-wardens and one overseer, but having only two seals, was a legal and valid certificate, under the statute of 8 & 9 W. 3. c. 30. the court held, that the certificate had not been properly executed.

And with regard to the execution of powers created by private authority, it is a settled rule of law, that all the circumstances required by the creators of the power, must be observed.” Thus, where a submission required that the award should be under the hands and seals of the arbitrators, an award signed but not sealed, was holden void. Thaire v. Thaire, Palm. 109. To the same effect are the cases of Doe d. Mansfield v. Peach, 2 Man. & Sel. 576. and Wright & al. v. Wakeford, 4 Taunt. 214. also Moodie v. Reid & al. 7 Taunt. 355. Of precisely the same character is the next case noticed in Lockwood v.

Sturdevant, viz. Rex v. Croke, Cowp. 39. where Lord Mansfield says, “ this is a special authority, delegated, by act of parliament, to particular persons, to take away a man’s property against his will; therefore, it must be strictly pursued, and must appear to be so upon the face of the order.” The other authorities cited are only the forms of deeds given by executors or administrators in 2 Swifts Dig. 789 — 90. & seq. These cases, it is not difficult to see, fall far short of authoritative decisions in support of the point to which they are adduced.

They indeed prove the general doctrine, that where a power is given to particular persons to do a certain act in a particular manner, their authority must appear on the instrument; and if it do not so appear, the act is void. Let us apply this principle to the case under consideration. This grantor, in the deed in question, declares herself to be executrix of the last will and testament of Ebenezer Bliss ; and that she sells this land in conformity to an order of the court of probate, dated the 24th of March, 1786.

Reference is made in the deed directly to the order; and by this order it appears, that the court of probate, upon the exhibition of her account as executrix, found, that there was due from the estate of the deceased 60Z. 11s. 2d. ; and that there was no moveable estate to pay the same ; and it therefore authorizes her to sell so much of the real estate as would raise that sum, with charges of sale. All admit, that this is a state of things, in which it is the duty of the judge of probate to order a sale of real estate ; and the record shows, that he made the order accordingly.

See the statute then in force, tit at. 269. tit. 60. s. 22. (ed. 1808.) Why then, is not this deed valid ? It is objected ; because it should set forth the reasons why the court of probate ordered the sale. Suppose it had set them forth ; that would not have furnished proof. Williams v. Peyton, 4 Wheat. 78. Innman v. Jackson, 4 Greenl. 237. 248. It must appear on the records of the court of probate, that a sale of real estate was necessary, to give validity to the order. This point was decided in Wattles v. Hyde & al. 9 Conn.

Rep. 10. “ It is essential,” say the court, in that case, “ to the validity of an order of probate for the sale of land, that it should appear on the face of the order, that the debts and charges allowed exceed the personal estate.” The same doctrine was promulged in Griffin v. Pratt, 3 Conn. Rep. 513.; but in no case, except in titur-devant v. Lockwood, has it been said, that the deed must detail the reasons on which the court of probate proceeded. Nor, in my opinion, can this be necessary.

The executor or administrator states the character in which he acts ; the order he receives ; and when that order is seen, it appears, that the court of probate was fully authorized to make it, by the statute. This, it is believed, has been the practice generally ; and if the principle advanced in Lockwood v. Sturdevant were to prevail, many titles under executors and administrators’ sales would be shaken. I cannot, therefore, give my sanction to the principle, in its extent.

What influence the fact, that the order was not strictly pursued, as is alleged in p. 387., had on the court, is not known ; nor is it known whether the whole court concurred in the opinion with the Chief Justice; but I am well satisfied, that the deed must be declared valid, this objection notwithstanding; though it was certainly proper, that the judge at the circuit should have'deemed himself bound by the -decision referred to. Another objection to this deed was made on the trial, viz. that it was corrupt, and was made upon a fraudulent combination between the grantor and grantee.

The deed being declared invalid, for the reason given above ; and it also being established by the court below, that the statute of limitations was a bar to this action ; it became unnecessary to consider and decide the facts arising out of the alleged corruption in the deed. This brings me to consider another objection made to the recovery of the premises, by the plaintiffs. When the right and title of Ann Watson accrued, she was a feme covert; and she and her husband had suffered more than fifteen years to elapse.

He is, therefore, barred, by this adverse possession, by force of the statute of limitations ; (Stat. 309, 10. tit. 59. s. 1.) and, of course, this action cannot be sustained. In my view, this objection is not sustainable. I suppose, that though the statute would run to bar the husband, yet as the wife is the real and substantial owner, she is not barred, but her rights are saved by the proviso. No decision directly bearing on this point, is within my knowledge. Resort, therefore, must be had to the general principles of law, and to the particular provisions of the statute relied on.

A husband and wife must join in an action for the recovery of the land of the wife. Com. Dig. tit. Baron and Feme. V. X. also tit. Pleader. 2 A. 1. Weller & al. v. Baker, 2 Wils. 423, 4. 1 Bulstr. 21. 1 Chitt. Plead.63, 4. (5th Am. ed.) The husband, in such case, is joined for conformity, and because she cannot, being a married woman, sue alone. The husband and wife, in such case, declare on a seisin in them both, and allege that his seisin is in right of his wife. There are many cases where she may or may not, join ; but in ejectment for her land, she must join.

If he die pending a suit in which she must join, as on a chose in action given to her before marriage, and in many other cases, the action survives to her. Hence, it is apparent, that her interests and rights are directly involved. It is true, that he is entitled to the use and occupation during coverture; and if he have issue by her, which could have inherited, and the wife be dead, he becomes tenant by the curtesy.

It is also clear, that on a dissolution of the marriage, by divorce, lie being- the guilty party, the wife becomes revest-ed with all her lands, though they may have been conveyed-by him, or taken for his debt, by execution against him, during the coverture. Starr v. Pease & al. 8 Conn. Rep. 541. and the cases there cited. In the case of Wheeler v. Hotchkiss, post — this doctrine is extended to a wife, who had obtained a divorce, having had children, and he thereby being, as it is termed, tenant by the curtesy initiate.

These principles oiiginate in the marriage relation, and illustrate the nicety which subsists between these correlates, and at the same time, do not impugn the idea, that her interest in the real estate remains ; and, by his marital rights, he is entitled to the use and improvement of it. Their interests are not separate, in such a sense, that he can be barred of a recovery, without directly affecting her substantial rights. It is believed, that the statute in question is not opposed to, but upholds, these principles.

By the enacting clause, no person is allowed a right of entry, but within fifteen years after such right accrues. The right in question did accrue, more than fifteen years before this action was brought. Hence, did the statute end here, the plaintiffs would be barred. But the rights of certain persons who are not sui juris, and are incapable of prosecuting their actions, are, by the proviso, excepted from the operation of the enacting clause.

Persons under twenty-one years of age, femes covert, and those who are non compotes mentis, or imprisoned, when the right first descended or accrued, may, within five years after the disability is, or shall be removed, bring their actions, notwithstanding the lapse of fifteen years. The whole time of the continuance of the disability is expunged; but as this time may be long, and therefore embarrassing, they shall be allowed only five years after it shall be removed.

The statutes of limitations are founded upon the idea, that a person who has rights will assert them ; and that he shall not be presumed to neglect the pursuit of property belonging to him, for fifteen years ; as well as upon the idea that deeds and other evidences of property may be lost. They rest also on principles of public policy. Interest reipublicce ut sit jinis litium. It is said, however, that as the husband is not within the proviso, if he is permitted to recover, it will be in direct violation of the statute.

This may be true ; but what right had he, or what right does he now, in connection with his wife, seek to recover ?- A mere incidental right, growing out of the coverture. What right does she seek to recover 1 Her real estate, of which she has been deprived, without any laches or fault on her part. Had she been insane, or imprisoned, or an infant, she would have been no more legally incapacitated, than by coverture ; for her will and power are controuled by her husband. She has been sub potes tate viri.

Again, it may be said, that either of the other disabilities mentioned in the proviso, while it existed, if the fifteen years had elapsed, would equally prevent the true owner of the property from asserting his right; for the ground taken is, that, if the statute has run for fifteen years, a bar is created, which will operate until the disability is removed; and that then five years shall be allowed to assert the right.

Can it be, then, that if a title should accrue to an infant of a year old, to an estate, being holden adversely, he could not bring an action after the lapse of nineteen years, but must wait until he arrive at twenty-one ? The reasonable doctrine would seem to be, that at any time during the existence of the disability, his right might be asserted ; and so I think the law is. But the counsel for the defendant rely on the authority of adjudged cases. Doe d. Wright v. Plumptre, 3 Barn. & Ald. 474. (5 Serg. & Lowb. 348.) Hulm v. Heylock, Cro. Car. 200.

The first named of these cases, was decided on the authority of the last. They both originated where lands were claimed after a fine levied. If we look, for a moment, at the operation of a fine, we shall be satisfied that these cases cannot apply. It is explained in 2 Bla. Com. 354 — 7. A fine is a species of conveyance, which passes the whole right, and bars all persons, who do not bring their action in five years. The statute of 4 H. 7. of fines, enures and operates by way of bar to the right of property ; but the statute of limitations is only a bar to the remedy. Ballant. Stat. Lim. 17.

If there be any parallelism, in these cases, with the case under consideration, it would seem to follow, that when the statute has run and the fifteen years have expired, no action can be sustained, by any person under a disability, until the disability is removed ; which brings us to the absurdity before supposed. A new trial must be granted, for the purpose of trying the question of a corrupt combination in obtaining the deed. If such corrupt combination be not proved, there must be judgment - for the defendant, as the facts now appear. Bissell, J. was of the same opinion. Church, J.

On the trial of this cause, in. the superior court, the judge, controuled, as he supposedly the authority of the case of Lockwood v. Sturdevant, 6 Conn.

Rep. 373. instructed the jury, that the deed from the exefcutor of Ebenezer Bliss to John Watson was void, and conveyed no title to the purchaser ; and I entirely concur in the opinion of the court now given, that the doctrine of that case, so far as it relates to the deed in question, is not law ; and that if from the other facts disclosed upon this motion, the present plaintiffs can maintain this action, a new trial ought to be granted : but believing, as I do, that these plaintiffs cannot sustain this action, by reason of the adverse possession of the defendant, and those from whom he claims title, I am satisfied, that no new trial should be granted.

The question upon this part of the case arises under the 1st

section of the statute of limitations, by which it is enacted: “ That no person shall, at any time hereafter, make entry into any lands or tenements, but within fifteen years next after his right or title shall first descend or accrue to the same; and every person so not entering, and his heirs, shall be utterly disabled to make such entry afterwards, &c.” And by a proviso in the same section, it is provided, “ that if any person, who hath or shall have such right or title of entry into any lands or tenements, be, or shall be, at the time of the first descending or accruing of the said right or title, within the age of twenty-one years, feme covert, non compos mentis or imprisoned, then such person, or his heirs, may, notwithstanding the expiration of said fifteen years, bring such action, or make such entry, as he might have clone before the expiration of the said fifteen years, so as such person shall, within five years next after full age, discoverture, <fcc., or the heirs of such person, bring such action or make such entry, and take benefit of the same.” The English statute of 21 Jac.

I. c. 16. is essentially the same, only limiting the time of entry to twenty years ; but it is important to remark, that in one very material particular, our statute has received a construction, which the English courts -have not given to theirs; for although, by stat. 21. Jac.

I. a right of entry is barred, by an adverse possession of twenty years, so that an action of ejectment cannot there be sustained; yet the right of property is not thereby lost, but may be enforced, by an appropriate action, at any time within sixty years ; whereas it has been immemorially holden here, that by an adverse possession of fifteen years, the entire title is lost to the former owner, and becomes vested in the disseisor ; and the acquisition of title by possession, is as well known in this state, as the acquisition of title by deed, devise or execution. 1 Swift's Dig. 161.

In England, a right of entry is not only barred or tolled, by an adverse possession of twenty years, but also, by a disseisin and descent cast. It is important in the construction of the statute now under consideration, as well as of all others, that every part shall be permitted to have entire effect; and I am persuaded, that the construction claimed by the'plaintiffs in this case, will entirely prevent the operation of the statute upon John Watson, the husband, without protecting materially the rights of his wife.

And on the other hand, I am convinced, that upon a reasonable construction of the statute, confirmed, as I think, both by principle and precedent, the right of John Watson, the husband, to the land in controversy, is lost, by the adverse possession of the defendant; and that the right of his wife, though existing, is suspended during coverture, and will revive in fa-vour of herself, or tier heirs, upon the death of the husband. It is an elementary principle of the common law, that the husband has a freehold interest in his wife’s estates of inheritance. Co. Lift. 305. Reeve's Dom.

Rel. 27. 1 Swift's Dig. 26. 2 Kent's Com. 110. Clancy's Rights of Married Women, 161. If the husband has such freehold estate, he has a right of entry ; and if so, by the explicit terms of the statute of limitations, it may and will be barred, by an adverse possession of fifteen years. To hold otherwise would be to claim the strange doctrine, that there may be a freehold estate in possession, without a seisin of it; or that there may be a seisin, without the possibility of a disseisin. It is no answer, as was suggested in argument, that the right of the husband is merely incidental to the right of the wife.

The husband has something more than a mere right; he has a vested estate in possession. If any thing more is meant by this notion of incidental right, than that the interest or estate of the husband is created and continued jure uxoria, I have not been able to discover it; and if nothing more is meant, I do not think the argument for the plaintiff is strengthened by it. The husband acquires his l ight to the chattels of the wile, in the same way.

If a freehold estate in truth exists in the husband, no matter how it was acquired, unless it can be proved, that, unlike all other freeholds, it cannot be lost by disseisin. The husband and wife are jointly seised of the wife’s freehold estates of inheritance in her right, the legal seisin being essentially in both ; and yet the separate legal existence of the wife being suspended, during coverture, the husband has the sole seisin in fact. Co. Lilt. 113. a. note R. Polyblank v. Hawkins, Doug. 329. 1 Bla. Com. 442. Clancy 162. Michell & ux. & al. v.

Hughes, 6 Bing. 689. (19 Serg. & Lowb. 206.) From this view of the subject, if it be correct, I think it follows, that the husband has the entire controul of this freehold estate, during coverture ; and that it is, within that time, subject to any disposition he alone shall make of it, subject only to the right of entry of the wife and her heirs, after coverture ended; whether such disposition of it be made, by the direct act of the husband, as by deed ; by act of law, as by levy of execution ; or by the operation of the statute of limitations upon the disseisin of the husband. 2 Kent's Com. 111. 1 Preston on Titles 334.

In conformity with this principle, it has been holden, that the husband, by his deed alone, may create a freehold in another; that he may, without joining the wife, make a good tenant of tho precipe, and by his own act, at common law, might work a discontinuance of the estate of the wife, so as forever to defeat her right of entry, and leave her only to her writ of right. To prevent this effect of the husband’s act, the stat. 32.

Hen. 8. was enacted, by which it was provided, “ that no act of the husband thereafter to be made, suffered, or done, by the husband only, of any manors, '«fee. being the inheritance or freehold of his wife, during coverture, shall in any wise make a discontinuance thereof, or be prejudicial to the wife or her heirs, or to such as shall have right, title, or interest to the same, by the death of such wife; and such other, to whom such right shall appertain after her death, may enter into such manors, &c. according to their rights and titles therein.” This statute did not curtail the power of the husband ; it only provided a remedy for the wife and her heirs, by giving to them a right of entry, which it secured to them as fully and explicitly as is done by our statute of limitations ; and its construction has been in conformity with the claim of the defendant in the present case.

Lord Coke, in his comments upon this statute, says : “ By the purview of which statute, 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.” Clancy 162. Co. Litt. 113. 326. a. Nor can it make any difference, whether the husband’s right of entry is lost, by his own direct act, as by his deed ; or whether, by his neglect to enter, or by the operation of law, in ány other way.

Little-ton, when treating of the disseisin of husband and wife, and a right of entry tolled by a descent cast, says : “ The right of the husband is taken away upon the heir, which is in by descent ; but if the husband die, then the wife may well enter upon the issue, which is in by descent.” Co. Lilt. 246. a. s. 403. And in a late case, it was holden, that a right of entry vested in husband and wife, in right of the wife, passes, upon his bankruptcy, to his assignees. Michell & ux. & al. v.

Hughes, 6 Bing. 689. (19 Serg. & Lowb. 206.) And in no case, which I have seen, has it been suggested, by the court, that the wife had right either of entry or action, while the cov-erture continued ; although in the case of Mitchell & ux. v. Hughes, it was contended, by counsel, as it has been in this, that the action was brought to enforce the rights of the wife, and that the husband was joined for conformity only. The same principle is effectually recognized in the case of Hulm v. Haylock, Cro. Car. 200. and also in the case of Wright v.

Plumptre, 3 Barn. & Ald. 474. (5 Serg. & Lowb. 348.) in which it was decided, by the court of King's Bench, that to avoid a fine, a husband claiming in right of his wife, must enter within five years after his title accrues ; though the wife, if she survive him, will be entitled to enter within five years after his death.

When it is recollected, that by our law, a title is as effectually transferred, by a disseisin of fifteen years, as it can be by deed or other alienation, it is difficult to perceive why such a disseisin of the husband will not affect the rights of the wife, in the same manner, as if her land had been conveyed, by her hus-. band’s deed, or taken on execution to satisfy his debt; and had such been the case, it is conceded, that this action could not be sustained.

It has been already said, that if the husband has a right of entry into the lands of the wife, he may be barred of it, by a fifteen years disseisin ; and if this is true, it wouM be effectually subversive of this principle, to hold, that notwithstanding his own right was forfeited, yet by joining his wife with himself, in one action, he may restore himself to his lost and forfeited rights ; for if there can be a recovery in this case, it is the husband who recovers ; the husband alone is let into the present and future possession and profits of the land ; and it is he who recovers the mesne profits as damages, although he had lost all title to them, many years ago.

It is an old doctrine of the law, that coverture, in some cases, will save the rights of the wife; but it is a new one, that it is such a disability on the part of the husband, as not only to protect him from loss, but to restore him to forfeited rights. Williams, J. concurred fully with Judge Church. Peters, J. gave no opinion. New trial to be granted.