cnuacmm. v. nnnson. 15
by virtue of a judgment and execution against the husband for his sole
debt, the sale taking place during the existence of coverture. _ Mrs.
Chambers· died in the year 1883, and after her death this suit was
brought, the plaintiff claiming that, notwithstanding the provisions of
section 3295 of the Revised Statutes of the state of Missouri, the sale un-
der the judgment and execution against B. M. Chambers was effectual
to pass his estate by the curtesy in the lands in question. On the other
hand, the defendant contends that the section last referred to prohibited
a sale of the husband’s curtesy during the existence of coverture. Which
of these theories is correct is the sole point for determination.
The case has been very fully and well argued for the plaintiii`, and I
may say that whilethe question has been incidentally alluded to in some
of the decisions in this- state, it has never been authoritatively decided
by the state courts. Section 3295 reads as follows:
"The rents, issues,-. and products of the real estate of any married woman,
and all moneys and obligations arising from thesale of such realestate, and
the interest of her husbandin her right in any real estate which belonged to
her before marriage, or which she may have acquired by gift, grant, devise,
or inheritance during coverture, shall, during coverture, be exempt from
attachment or levy of execution for the sole debts of her husband; and no
conveyance made during coverture by such husband of such rents, issues, and
products, orofany interest in such real estate, shall be valid, unless the same
_be, by deed, executed by the wife jointly with the husband, and acknowledged
by her in the manner now provided by law in the case of the conveyance by
husband and wire of the real estate of the wife." A `
The position of plaintitf’s counsel on the question involved may be
stated as follows: The statute under consideration is an innovationon
the common law, and, therefore, should be strictly construed. . At com- V
mon law, the husband, upon marriage, becomes tenant, by the mar-
ital right, of his wifeelands, and, as such, is entitled to the rents, is-
sues, and products thereof, ·On the birth of issue capable of inheriting,
he becomes tenant‘by_ thecurtesy, which, before the death of the wife,
is termed "curtesy initiate/’ and after her death "curtesy consummate."
These two estates at common law, areessentially different. 'l‘he former,
termedan ‘f estate by the marital right" was said to be held bythe hus-
band _.in_,right of the wife;  the latter, or " tenancy by the curtesy,’? was
an estate said to be held, not "in right of the. wife," but in thehusband’s
own right;. and, inasmuch as the statute above quoted uses the words
»"in her right," and in terms only exempts from seizure and sale those
interests of the husband held "in right of the wife," it is argued that the
husband’s curtesy is not within the terms of the exemption created by
esection 3295, and therefore may be seized and sold, and that a recovery
in ejectment may be had on such title after the wife’s death. The fol-
lowing cases are cited in support of the various propositions last stated:
2 Bish. Mar. Wom. §§ 17-148, and 1 Bish. Mar. Wom. §§ 531, 532;
A Bop. Husb. & Wife, c. 1; Washb. Real Prop. bk. 1, c. 9, § 1; Foster v.
Marshall, 22 N., H. 491; 2 Kent, Comm. 130; Co_. Litt. 67a; Bright,
Husb. &. Wife, 113; Valle v. Obenhause, 62 Mo. 81; Dyer v. Wittler, 89 Mo.
89;__Clancy,_ Hush. & Wife, 1.85; and·Mattocks v. Stearns, 9 Vt. 326.