Buck v. Goodrich

33 Conn. 37 | Conn. | 1865

Park, J.

The declaration in this case counts upon a permanent injury committed to the real estate of Mary Buck, the wife. It.commences by describing a lot Of land.belonging to her in fee. It then sets forth “ that the defendants, intending to injure the said land, and to deprive the said Mary of all benefit thereof, and to destroy the soil and'sub stance of the same,” did <fcc. 'It then alleges that, by reason of the premises, “ said land, with the soil, substance, and body thereof, have been greatly injured and damnified, to the great hurt and'prejudice of said Mary’s estate therein, and to the damage thereof; ” and concludes by stating that the suit is brought to recover such damage.

What interest has Daniel Buck in the subject-matter of this suit ? He has studiously avoided stating any in the declaration ; and it seems, if it is possible for a husband and wife to sue only for that portion of an injury committed to the real estate of the wife which is of a permanent' nature and solely affects her interest, that the plaintiffs have been successful in framing this declaration to recover . damages for such an injury.

It must be conceded that it is in the power of husband and wife to do this. They may pass by all injury to the possession, all injury in which both are interested, and count only upon the permanent, lasting injury to the freehold of the wife.

The husband can not sue alone for such an injury, for the cause of action will not survive to him. 1 Swift Dig., 36 ; Reeve’s Dom. Rel., 133 ; Clapp v. Stoughton, 10 Pick, 463 ; Fuller v. Naugatuck R. R. Co., 21 Conn., 557. Consequently he can not prosecute such an action after the death of his wife during the pendency of the suit.

We think, therefore, there is manifest error in the judgment of the court below, and for these reasons it must be reversed.

In this opinion the other judges concurred.