unless a statute intervene, as when it is required that the divorce be for the fault of the husband, in order to have that effect.392 A purchaser of the land from the husband before a divorce for a cause arising after marriage will not, it has been held, be affected by the divorce.898 A divorce a mensa et thoro will not affect the husband's rights,3 394

-Adultery.

Adultery by the husband will not deprive him of curtesy, in the absence of a statutory provision to that effect.395

-Adverse possession.

The husband, having a right to sue for the land, may be barred of his right of curtesy by his failure to do so for the statutory period of limitations, if the property is in the adverse possession of a third person.396

210. Curtesy initiate.

Upon the birth of issue capable of inheriting, the husband is said to be tenant by the curtesy initiate, and he becomes tenant by the curtesy consummate only after the death of the wife.397 A tenant by the curtesy initiate has a freehold

v. Failing, 111 U. S. 523; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Burgess v. Muldoon, 18 R. I. 607; Cralle v. Cralle, 79 Va. 182. 802 Meacham v. Bunting, 156 Ill. 586, 47 Am. St. Rep. 239; Wait v. Wait, 4 N. Y. 95.

303 Gillespie v. Worford, 2 Cold. (Tenn.) 632.

894 Rochon v. Lecatt, 2 Stew. (Ala.) 429; Clark v. Clark, 6 Watts & S. (Pa.) 85.

895 4 Kent, Comm. 34; Sidney v. Sidney, 3 P. Wms. 276; Wells v. Thompson, 13 Ala. 793, 48 Am. Dec. 76.

896 Shortall v. Hinckley, 31 Ill. 219; Doe d. Chi.ders v. Bumgarner, 53 N. C. 297; Guion v. Anderson, 8 Humph. (Tenn.) 298; Crow v. Kightlinger, 25 Pa. St. 343. See post, note 404.

297 Co. Litt. 30a; 2 Bl. Comm. 128; 4 Kent, Comm. 29; Jones v. Davies, 7 Hurl. & N. 507; Stewart v. Ross, 50 Miss. 776; Foster ▼. Marshall, 22 N. H. 491, Finch's Cas. 622, 6 Gray's Cas. 707; Lancaster County Bank v. Stauffer, 10 Pa. St. 398.

H

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estate in the land,398 which he has full power to convey; and it is bound by a judgment against him, and liable to sale on execution.400 In some states, however, owing to legislation, the husband has, until the wife's death, no estate which he can convey,101 or which is subject to sale on execution. 402

Curtesy initiate is a vested right, of which the husband cannot be deprived by the legislature. 403 The tenant by the curtesy initiate has full power to sue to obtain possession from third persons."

404

There has been some difference of opinion as to the character of the wife's rights during the period of curtesy initiate, especially in connection with questions of adverse possession in a third person for the statutory period as against her and her heirs. In Massachusetts, and perhaps elsewhere, it is considered that, during that period, the wife

108 Co. Litt. 30a; Stewart v. Ross, 50 Miss. 776; Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 137, 6 Gray's Cas. 697; Lancaster County Bank v. Stauffer, 10 Pa. St. 398; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740.

399 Co. Litt. 30a; Shortall v. Hinckley, 31 Ill. 219; Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Jackson v. Jackson, 144 Ill. 274, 36 Am. St. Rep. 427; Stewart v. Ross, 50 Miss. 776.

400 Canby's Lessee v. Porter, 12 Ohio, 79; Van Duzer v. Van Duzer, Paige (N. Y.) 366, 31 Am. Dec. 257; Lang v. Hitchcock, 99 Ill. 550; Roberts v. Whiting, 16 Mass. 186; Mattocks v. Stearns, 9 Vt. 326; Lancaster County Bank v. Stauffer, 10 Pa. St. 398; Day v. Cochran, 24 Miss. 261, 275.

401 Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 85; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740; Walker v. Long, 109 N. C. 510; Porch ▼. Fries, 18 N. J. Eq. 204.

402 Staples ▼. Brown, 13 Allen (Mass.) 64; Curry v. Bott, 53 Pa. St. 400.

403 Zeust v. Staffan, 16 App. D. C. 141; Jackson v. Jackson, 144 Ill. 274, 36 Am. St. Rep. 427. See Hitz v. National Metropolitan Bank, 111 U. S. 722.

404 Shortall v. Hinckley, 31 Ill. 219; Wilson v. Arentz, 70 N. C. 670; Costello v. Grand Trunk Ry. Co. (N. H.) 47 Atl. 265.

and the husband are jointly seised, so that a disseisin by other persons will operate against the wife, as well as against the husband. 405 But, more usually, it is considered that, during the curtesy initiate, the wife has no seisin, but she has merely a reversion expectant on the termination of the life estate by curtesy in the husband.*0*

405 Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 161, 6 Gray's Cas. 697; Kittredge v. Proprietors of Locks & Canals on Merrimack River, 17 Pick. (Mass.) 246; Guion v. Anderson, 8 Humph. (Tenn.) 298, 325 (semble).

406 Foster v. Marshall, 22 N. H. 491, Finch's Cas. 622, 6 Gray's Cas. 707; Shortall v. Hinckley, 31 Ill. 219; Dawson v. Edwards, 189 Ill. 60; Dyer v. Wittler, 89 Mo. 81, 58 Am. Rep. 85; Stewart v. Ross, 50 Miss. 776. And see Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 443; Den d. Fagan v. Walker, 27 N. C. 634. The opinion in Foster v. Marshall, supra, appears to the present writer to be unanswerable. As there shown, the common-law writers speak of the estate by curtesy initiate vesting in the husband, on the birth of issue, "in his own right," as distinguished from his estate in the wife's freehold property of inheritance before the birth of issue, which give the husband and wife seisin jointly "in right of the wife." See Co. Litt. 30a, 67a, 124b, 351a. See, also, authorities cited ante, note 397. This distinction seems not to be observed in Melvin v. Proprietors of Locks & Canals on Merrimack River, 16 Pick. (Mass.) 161, and Gulon v. Anderson, 8 Humph. (Tenn.) 298, 325, which discuss the character of the husband's estate, without reference to the effect of the birth of issue, though it appears from the statements of facts that there were issue born. In Kittredge v. Proprietors of Locks & Canals on Merrimack River, 17 Pick. (Mass.) 246, it is merely stated that it had been decided in Melvin v. Proprietors of Locks & Canals on Merrimack River, that, where there is tenancy by the curtesy initiate, a disseisin affects the right of the wife as well as that of the husband. The word "curtesy" does not, however, appear in the opinion or arguments in the earlier case. Mr. Washburn (1 Washburn, Real Prop. 141) cites a number of cases as supporting the Massachusetts view (Weisinger v. Murphy, 2 Head [Tenn.] 674; Coe v. Wolcottville Mfg. Co., 35 Conn. 175; Junetion R. Co. v. Harris, 9 Ind. 184; Butterfield v. Bean, 3 Ind. 203), but these are apparently decisions merely as to the nature of the rights before birth of issu↑,

211. Curtesy consummate.

Upon the death of the wife, the husband is entitled to immediate possession, without the necessity of any assignment, such as is necessary in the case of dower, owing to the fact that the latter estate exists in one-third only of the decedent's property.107 He takes it by operation of law, as by descent, rather than by purchase, and for this reason he cannot, by a written disclaimer or otherwise, refuse to take it, and cause it to remain in others.408

The husband thereafter holds the property with the same rights and liabilities as any life tenant.109 He may convey or incumber it;410 and it may be subjected to execution for his debts.411 He cannot commit waste,112 but is entitled to emblements.413

212. Statutes altering or abolishing curtesy.

In a number of states, curtesy has been expressly abolished by statute,111 and occasionally the husband is given, in place of curtesy, an estate similar to the widow's dower estate."

415

407 2 Minor, Inst. 157; 1 Washburn, Real Prop. 142; 1 Cruise, Dig. tit. 5, c. 2, § 28.

408 Watson v. Watson, 13 Conn. 83, 6 Gray's Cas. 702, Finch's Cas. 626.

409 Clancy, Husb. & Wife (2d Am. Ed.) 189; 1 Washburn, Real Prop. 142; 1 Cruise, Dig. tit. 5, c. 2, § 26.

410 Bozarth v. Largent, 128 Ill. 95; Deming v. Miles, 35 Neb. 739, 37 Am. St. Rep. 464. See, also, Adair v. Lott, 3 Hill (N. Y.) 182, 6 Gray's Cas. 704.

411 Stanley v. Bonham, 52 Ark. 354; Bozarth v. Largent, 128 Ill. 95; Deming v. Miles, 35 Neb. 739, 37 Am. St. Rep. 464.

412 Walker's Case, 3 Coke, 23b; Bates v. Shraeder, 13 Johns. (N. Y.) 260; Ware v. Ware, 6 N. J. Eq. 117; McLeod v. Dial, 63 Ark. 10; Armstrong v. Wilson, 60 Ill. 226; In re Steele, 19 N. J. Eq. 120.

413 1 Roper, Husb. & Wife, 35.

4141 Stimson's Am. St. Law, § 3300 (G); 1 Sharswood & B. Lead. Cas. Real Prop. 286.

415 1 Stimson's Am. St. Law, §§ 3202 (D), 3301(F); 1 Sharswood

The statutes giving married women full control of their property are generally held not to abolish curtesy, though they in effect restrict the estate to such property as the wife has at her death;416 but they are sometimes regarded as abolishing the curtesy initiate, or as changing its character, without destroying the right to curtesy consummate.

IV. HOMESTEAD RIGHTS.

417

Land occupied by one as a homestead, which, by the statutes of many states, is exempt from forced sale for payment of debts, cannot usually, under those statutes, be aliened or incumbered by the owner unless his wife assents, and, in most states, joins in the instrument of conveyance.

In states where the homestead law prevails, the widow is usually, and the husband occasionally, given homestead rights

& B. Lead. Cas. Real Prop. 286; Jackson v. Jackson, 144 III. 274, 36 Am. St. Rep. 427; Gaffney v. Peeler, 21 S. C. 55. The term "dower" is sometimes by statute given to the husband's statutory estate. 1 Stimson's Am. St. Law, §§ 3202 (D), 3301(F); 2 Dembitz, Land Titles, 836.

416 See Neelly v. Lancaster, 47 Ark. 175, 58 Am. Rep. 752; Hatfield v. Sneden, 54 N. Y. 280; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740; Carter v. Dale, 3 Lea (Tenn.) 710, 31 Am. Rep. 660; Comer v. Chamberlain, 6 Allen (Mass.) 166; Porch v. Fries, 18 N. J. Eq. 204; Alderson's Adm'r v. Alderson, 46 W. Va. 242; Cole v. Van Riper, 44 Ill. 58; Commissioners of Rouse's Estate v. Directors of Poor of McKean Co., 169 Pa. St. 116; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Kingsley v. Smith, 14 Wis. 360.

So, curtesy was held to take precedence of the rights of judgment creditors of the wife, if they failed to enforce their rights by exe cution during the wife's life, though, if they had done so, under the statute, the husband's curtesy would have been excluded. Hampton V. Cook, 64 Ark. 353.

In Michigan, a statute giving full control of her property to a married woman was considered to abolish curtesy. Tong v. Marvin, 15 Mich. 60.

417 See Moore v. Darby, 6 Del. Ch. 193, 13 L. R. A. 346; Porch v. Fries, 18 N. J. Eq. 204; Walker v. Long, 109 N. C. 510; Breeding V. Davis, 77 Va. 639, 46 Am. Rep. 740.