| Nev. | Jul 15, 1870
By the Court,
Suit to foreclose a mortgage, the complaint alleging that the note to secure which the mortgage was given was executed to Mary Crow, who it is charged was at the time of its execution and delivery, and ever since has been, the wife of plaintiff, and that, the consideration upon which the note and mortgage were executed was money received by the defendant Van Sickle from the plaintiff. It is also alleged that the plaintiff is the owner and holder of the note and mortgage, and that they now are and “ have ever been the common property of himself and his Said wife.”
The defendant Van Sickle demurred to this pleading, assigning several grounds, only two of which, however, are urged in this Court, namely: First. It is ambiguous and contradictory in this : it alleges, first, that the plaintiff is the owner and holder of the note and mortgage, and again that they are the common property, of himself and wife: and second, that, as it alleges Wells, Fargo & Co., who are made defendants, to be a corporation, it should show whether a domestic or foreign corporation, and for what purpose incorporated.
At first blush the allegation respecting the ownership would seem to be a flat contradiction. When, however, taken in connection with the peculiar statute of this State respecting the common property of husband and Avife, it will be observed no such contradiction exists. Section two of that law declares that “ all property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common1 property.” And section nine of the same act provides that “ tho husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his OAvn 'separate estate.” (Stats, of 1864-5, 240.) The complaint Avas evidently drawn with this statute in view. By virtue of it, the husband is — for the purpose of bringing suits upon choses in action
After alleging himself to be the owner, it was doubtles useless to go further and state that it was common property. Either allegation would evidently have been sufficient to show a right of actioir in the plaintiff; but if both allegations be embodied in the same pleading, we cannot perceive why it should be a cause of demurrer, for the allegation of common property is little, if anything, more than an explanation of the character of the plaintiff’s ownership.
The second ground of demurrer clearly has no merit. It is charged that the concern known as Wells, Fargo & Co. has some interest in the property, accrued subsequent to the interest of plain tiff. Thus it became necessary to make it a party defendant. Whether it be a foreign or domestic corporation, and for what pur pose it may have been incorporated, are matters into which the plaintiff was not bound to enquire. It was his duty to get legal service on the defendant: for the purpose of determining how to do that, it might be necessary for him to ascertain whether the corporation were foreign or domestic, but beyond that he had nothing to do Avith it.
The demurrer was improperly sustained. The judgment must therefore be reversed.