3 U.S. 479 (1798)

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U.S. Supreme Court

PEMBERTON'S LESSEE v. HICKS, 3 U.S. 479 (1798)

3 U.S. 479 (Dall.)

Pemberton's Lessee

Supreme Court of Pennsylvania

December Term, 1798

This ejectment was tried at Newtown, in Bucks County, May, 1794, when the Jury found the following special verdict:

The Jurors impannelled, tried, sworn and affirmed to try the issue joined in this cause upon their respective oaths and affirmations say That Laurence Grouden, being seized in fee of the premises in the declaration mentioned, by his last will in writing duly made and executed, devised the same premises in fee simple to his daughter Grace Galloway, then the wife of Joseph Galloway, and afterwards died seized thereof as aforesaid:

Page 3 U.S. 479, 480

said: That the said Grace Galloway had issue by her said husband, one daughter Elizabeth, who is still alive: That the said Joseph Galloway afterwards by Act of Assembly passed on the 6th of March 1778, was required to surrender himself under pain of being attainted of High Treason: That the said Joseph Galloway did not surrender himself accordingly, and therefore became and stood attainted of High Treason to all intents and purposes, and his estate forfeited to the commonwealth, the said Grace Galloway then being in full life: That the said premises were afterwards duly seized and sold by the agents for forfeited estates, and the same conveyed to the Defendant by the commonwealth. That the said Joseph Galloway so being attainted, departed out of the United States into parts beyond sea, and still continues there in full life: That the said Grace Galloway continued in the United States, and afterwards, to wit, on the 6th Feb. 1782, died seized in fee simple of the premises aforesaid, having first, to wit, on the 20th Dec. 1781, duly made and published her last will in writing, whereby she devised the said premises to Owen Jones and others: That the survivors of the said devisees afterwards, to wit, on the 6th of April 1790, conveyed the same premises to Thomas Rogers: That the said Thomas Rogers on the 20th April 1790, conveyed the same premises to the Lessor of the Plaintiff, who demised the same premises to the same Richard Fenn: That the same Richard Fenn entered and was ousted by the said Defendant.

    'If upon these facts the law be with the Plaintiff, they find for the Plaintiff and assess six pence damages, besides the costs; but if for the Defendant they find for the Defendant.'

The general question was, whether a tenant by the courtesy initiate, has an estate forfeitable upon his attainder for treason? And it was argued at two several terms, by E. Tilghman, and Lewis, for the Lessor of the Plaintiff; and by Ingersoll and Dallas, for the Defendant.

For the Lessor of the Plaintiff, the subject was considered in three points of view: 1st. What the husband seized of real estate, gains by the marriage, before the birth of a child? 2nd. What is the nature of the estate which he acquires after issue? And 3rd. How, after issue, does a forfeiture upon attainder operate?

1st. By the marriage alone a husband does not gain a freehold in his own right, in the estate of his wife; though he is jointly seized with her, during their joint lives, and is entitled to receive the profits to his own use. The freehold and inheritance [3 U.S. 479, 481]

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