Miller v. Shackleford
| Decision Date | 10 October 1835 |
| Citation | 33 Ky. 289 |
| Parties | Miller <I>vs.</I> Shackleford. |
| Court | Kentucky Court of Appeals |
THIS was an action of ejectment, brought by Rachel Shackleford, widow of Bennet C. Shackleford, to recover land belonging to her in her own right, which had been conveyed in fee, by her late husband, during the coverture.
On the trial, the plaintiff exhibited a patent to herself, before her marriage, for eight hundred acres of land; and proved the death of her husband in 1823; and that the defendant was in possession of a part of the land included within her patent, at the commencement of the ejectment, in May, 1833. She also proved that the land in controversy had been taken possession of under her patent, and so held ever since.
The defendant then read in evidence, a deed, dated in 1811, purporting to be made by Shackleford and his wife, the lessor of the plaintiff, and to convey in fee simple all the land contained in the said patent, to William Barnett, under whom the defendant claimed by deed. But the deed from Shackleford and wife was not authenticated in such a manner as to pass her estate in the land, — the certificate of the clerk importing only that she had, on privy examination, "declared that she freely and voluntarily relinquished he right of dower in the tract of land" mentioned in the deed.
Barnett, the grantee in this deed, proved that he had purchased the land from Shackleford and wife, in 1809, and paid the purchase money (five thousand dollars) before the deed was made, — that he had taken possession in 1809, and that he and those claiming under him, had been in possession ever since claiming the land as their own, under the above mentioned patent; that he had never seen or conversed with the plaintiff since the death of her husband, and that he claimed under the deed from Shackleford and wife, and no other.
It was also proved by several witnesses, that the lessor of the plaintiff had, two or three years before the ejectment was commenced, in conversation with them, stated, in substance, that she and her husband had sold and deeded the eight hundred acres of land to Barnett; that she had been satisfied with the deed, and set up no claim, except for the surplus, and did not know that she could claim more, until she was informed she could claim the whole tract, and as the surplus had not been paid for, she concluded to claim the whole, and did so; and it was admitted on the trial, that the lessor of the plaintiff did, during her coverture, sign the deed to Barnett.
The defendant also offered to prove, by Barnett, that, when and before he purchased the land, the lessor of the plaintiff pressed him to buy it, and that the purchase money was to be, and had been, vested in other property, for her special use and benefit. The avowed purpose of offering this proof, was to connect the facts referred to, with facts and circumstances subsequent to the death of Shackleford, as conducing to show acquiescence in the sale, and a re-delivery of the deed. But the Court would not permit Barnett to testify on the subject.
At the instance of the plaintiff, the Court excluded from the jury the testimony relating to her conversations and statements; and gave the following instructions: —
First. That the deed from Shackleford and wife formed no obstruction to the plaintiff's recovery; and —
Second. That, if they believed, from the evidence, that the patent which had been read, covered the land in controversy; that the lessor was the patentee; that her husband died in 1823, and the defendant was in possession of the land at the commencement of the action, they must find for the plaintiff.
The Court refused instructions asked for by the defendant, of the following import: —
First. That, if the deed from Shackleford and wife was originally void, it might be made good and effectual by re-delivery after she was discovert; and that circumstances showing her acquiescence after she became discovert, are equivalent to a re-delivery.
Second. That, if ten years had elapsed from Shackleford's death, before suit brought, and the defendant and those under whom he claims had been in adverse possession of the land twenty years before the commencement of the suit, they must find for the defendant.
Under these opinions of the Court, a verdict was found for the plaintiff; and a new trial having been refused to the defendant, he has appealed to this Court.
The deed to Barnett was doubtless void as to Mrs. Shackleford, during the coverture, and was decided to be so by this Court, in the case of Barnett vs. Shackleford, 6 J. J. Marshall, 532. This is not controverted by the defendant.
But it is contended, that as the deed of Shackleford alone, it presents some obstacle to the recovery of the land by Mrs. Shackleford, in the present action: and first, on the ground that it is a discontinuance of her estate. But although the alienation of the wife's estate by the husband, if done by feoffment, fine, or common recovery, in which livery of seizin was actually made, or was acknowledged of record, might, by the ancient common law, have operated as a discontinuance, and have driven her to her real action for the recovery of her estate: such was not the operation, even at common law, of any conveyance which did not require livery of seizin, and where none was made. Ca. Lit. 322 a, 322 b. On this ground, a deed of bargain and sale does not work a forfeiture if made by tenant for years, and for the same reason it does not, unless there be a warranty with assets, amount to a discontinuance, if made by the husband. 3 Thomas's Coke, 124, n. g.
But passing by this view of the subject; the statute of 32 Hen. VIII, re-enacted in this state in 1798 (1 Stat. Law, 582) expressly provides that "no feoffment or other conveyance &c. made, suffered or done, by the husband only, of any lands, &c. of the inheritance or freehold of the wife, during the coverture, shall be or make any discontinuance thereof, &c. but the wife, or her heirs, &c. shall and may then lawfully enter into all such lands, &c, according to their rights and titles therein, notwithstanding such feoffment or other conveyance." It is also provided, by another statute of 1798 (1 Stat. Law, 110) that all alienations purporting to pass a greater estate than the alienor hath, shall operate to pass so much of the estate as he may lawfully convey; but shall not bar the residue of the right or estate, except, that if the alienation be with warranty by the alienor and his heirs, and any heritage descend from him to the demandant, then he shall be barred to the value of the heritage so descended.
Under the operation of these two statutes, the deed of Shackleford passed such estate as he had in the land. But it did not work a discontinuance of the wife's estate, or bar her right to enter immediately upon his death, when the coverture ceased. Nor is she barred by the warranty, since she does not appear to be his heir, or to have received any heritage from him by descent.
It is contended, however, on the part of the defendant in the action, that notwithstanding the statute has expressly declared, that the feoffment or other conveyance of the husband shall be no discontinuance of the estate of the wife, yet it has the effect of a discontinuance until actual entry is made, or so far as to require an actual entry before an ejectment could be maintained. But if it be a discontinuance, its primary and principal effect is to defeat the right of entry; and it is for this reason that a discontinuance is a bar to an ejectment. The distinction between a disseizin and a discontinuance, in regard to their effect upon the mode by which the person having right may be reinstated in his estate, is, that a disseizee may restore himself to his possession and estate by his own entry; or if by five years delay and a descent cast, he be driven to his action, he may have it immediately; whereas, in case of discontinuance, which is an interruption of the right, and which takes place only where the person whose alienation makes the discontinuance has himself a freehold, and his alienee is in by law, the true owner is not permitted to restore his estate by his own entry, but must resort to his action; and has no right of action during the life of the alienor — for during that period, his right to the estate does not accrue. So that, if it be a discontinuance until actual entry, as a discontinuance leaves no right of actual entry, the provision of the statute would be inconsistent, and of no effect. But by express words of the statute, it is no discontinuance; and the wife may enter, and it is impossible, under any construction, to deprive her of the right of entry by mere force of the husband's alienation. Detheridge vs. Woodruff, 3 Mon. 244. Is it true then, that an actual entry must be made before ejectment can be brought? We are clearly of opinion that it is not.
The statute declares that, notwithstanding the alienation of the husband, the wife may enter, and that such alienation shall not be prejudicial to her. The entry thus saved to her by the statute, must be such entry as will suffice to restore her to the lawful possession of her estate; and in 2 Bibb, 414, Innes vs. Crawford, it is said by the Court, to be the established law, that where by entry alone, the owner may acquire legal possession, ejectment may be brought without an actual entry. In Buller's N. P. 103, it is laid down that, the confession of lease, entry and ouster is sufficient in all cases, except in the case of a fine with proclamations, in which case it is necessary to prove an actual entry. Lord Mansfield, in the case of Wigfall vs. Bryden, 3 Bur. 1897, asserts the same to be the law; and in the case of Goodright vs. Cator, Doug...
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