Wheeler against Hotchkiss, 10 Conn. 225

Daggett, Ch. J. Two questions have been discussed in -this case, which will now be considered. I. Has the plaintiff a title to the land on which the supposed trespass was committed ? It was conveyed to her, in 1808, while she was the lawful wife of William Wheeler, by whom she had issue, born alive, before and since the conveyance. His interest in this land by virtue of the coverture, was taken by execution, in favour of one Judah Ransom, who entered into possession and occupied until the 15th of June, 1832; when he sold it to the defendant, who has possessed it ever since.

Subsequent to all these events, in August, 1832, she obtained, by a decree of the superior court, a divorce a vinculo matrimonii from her husband William Wheeler. What is the operation of this decree of divorce "upon the rights of the wife, and of the defendant, who holds by purchase from the execution creditor'? It was decided, by the unanimous opinion of this court, in Starr v. Pease & al. 8 Conn.

Rep. 541. that the right of the husband in the land of his wife, being an estate during covert-ure, is terminated, by a divorce a vinculo matrimonii ; and that the rights of creditors to the land dependent on coverture, were thereby affected and destroyed. On further reflection, I am satisfied wdth that decision. It must, then, controul this case, unless a distinction can be sustained. The counsel for the plaintiff insist on this fact, that in the case of Starr v.

Pease & al. it appeared, that Lewis, the husband, had no issue by the wife ; and in this case, Wheeler, the husband, had issue, born alive, before and after she became seised of the land ; and hence, they say, that he was tenant by the curtesy initiate. It has its origin, they insist, not simply in the marriage, but in the birth of issue. He may then charge the estate ; make a feoffment; hold against the heir of the wife, after her death ; against the remainder-man or reversioner; and even against the king, in the case of attainder.

And again, his estate is not terminated, by abandoning the wife and living with another woman. For these several positions they cite Co. Litt. 30. 2 Bla. Com. 127. 1 Rop. on H. & W. 15. 45. 48. 1 Swift’s Dig. 84. Sidney v. Sidney, 3 P. Wms. 276, 7. Be it so, that by these authorities, these positions are sustained ; still all the authorities concur, that until the death of the ■wife, he is only tenant by the curtesy initiate, and not con-flsummate. The death of the wife is one of the four essential requisites to constitute a tenancy by the curtesy.

Now, the wife, Mary Wheeler, is still living, and the foundation of the husband’s estate is removed, by the dissolution of the marriage. The coverture is dissolved, by the wrong act of the husband. By the authority of adjudged cases, as well as for the soundest reasons, his estate could continue only during the coverture. 8 Conn. Rep. 545. I am, therefore, satisfied, that the right of the wife, which was suspended, during the marriage, is restored, by the divorce ; and of course, the title to the land is now vested in her. 2. Can she maintain an action of trespass ?

That she had no actual possession is very apparent. It is a part of the statement agreed to by the parties, that the defendant was in possession under the levy of an execution of Judah Ransom, and a purchase from him. It is said, she entered and demanded possession ; and that it was refused ; and that the defendant continued to occupy and possess in opposition to the plaintiff, until after the commencement of the suit. Here, then, is an adverse holding of the plaintiff out of possession; and yet an action of trespass is to be sustained, by the person thus ousted and disseised.

This cannot be the law relating to trespass. All our elementary treatises inform us, that possession is essential to maintain the action, even in case of personal property, though ownership generally draws after it the possession. Furniture is leased. The lessee may maintain trespass for an injury to his possession ; but the lessor cannot. His remedy is case for an injury to his reversionary interest. So in case of injury to land, the tenant recovers for the injury to his possession ; the landlord for damage by waste, in an action on the case, if the freehold is injured.

But it is not true, that in every instance of ownership in land, the owner can maintain trespass. He must have the possession. 1 Chitt. Plead. 175. Lambert v. Stroother, Willes 218. 221. Mather v. The Ministers of Trinity Church & al. 3 Serg. & Rawle 509. 512, 3. 514. & seq. Toby v. Reed, 9 Conn. Rep. 217. 223, 4. Wild lands stand on different principles. It is said, however, that the right of property in real estate, in Connecticut, draws to it the possession. Can this be true ? Can a creditor, who has levied on the land of his debtor, maintain trespass, until he has got into possession ?

Clearly nota Nor can a bargainee, although the statute of uses transfers th^ possession. Com. Dig. tit. Trespass. B. 3. I am, therefore, well satisfied, that this action cannot be sustained, though the plaintiff has the right to the land in question. Consequently, judgment must be entered for the defendant. The other Judges were of the same opinion, except Peters, J., who was absent, Judgment for defendant.