The complaint in this case shows that the plaintiff held title to certain real estate in Juab county, merely as trustee for the use and benefit of the defendant Belle Wilson, who was then the wife of Harvey R. Tompkins; that plaintiff had no beneficial interest therein, and that in September, 1887, he conveyed the property to said Belle Wilson; that the plaintiff simply held the title for her in trust on account of the intemperate habits of her then husband; that prior to said conveyance to her, in 1887, the said Belle Wilson informed the plaintiff that one Anna Marks was wrongfully entering upon said property, by attempting to take possession of a portion of the same, and erect a house thereon, and that said acts were
The question presented by the first proposition must be treated in the light of the admitted facts, which are that the plaintiff had no personal interest whatever in the proceeding which was instituted to recover possession of the property against Anna Marks, except as agent for Belle Wilson. He was informed by Belle Wilson, and believed in good faith, that Anna Marks was intruding and trespassing upon the property in question, and erecting a building thereon, in violation of her right. He was requested by Belle Wilson to consult an attorney, and
“It is a general rule that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrong, the law will not relieve him. But to this rule there are many exceptions; which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet, as between themselves, some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of
Cooley, Torts, pp. 145-149; Bailey v. Bussing, 28 Conn. 459; Story, Partn., § 220; Nelson v. Cook, 17 Ill. 448; Betts v. Gibbins, 2 Adol. & E. 57; Gower v. Emery, 18 Me. 83; Mechem, Pub. Off. § 890; Coventry v. Barton, 17 Johns. 142; Acheson v. Miller, 2 Ohio St. 203; Merrill v. City of St. Louis, 12 Mo. App. 467.
The effect of Belle Wilson’s instructions was to employ an attorney, commence the suit, and to follow his advice. The proceedings were those advised and conducted by the attorney employed, and the plaintiff believed the proceedings were regular, and that the commissioner had jurisdiction. Under the facts, the plaintiff was not guilty of an intentional tort, nor of committing a known and meditated wrong. In the case of Marks v. Culmer, 6 Utah 429, 24 Pac. 528, the court said: “In People v. Hills (Utah) 16 Pac. 405, this court said: ‘We entertain no doubt that the commissioner is acting in good faith,as there has been diversity of opinion in the profession and among commissioners as to the construction of the statute under consideration.’ This applies equally to the parties and attorneys. This was the first authoritative decision of the question.”
For the reasons given, we think the court erred in sustaining the demurrer of Belle Wilson.
The next question is as to whether the husband, under our law, is liable for the torts of a woman committed before marriage, and while she is the wife of another man. When the action for damages was commenced by Anna .Marks against Belle Wilson, this plaintiff, and others, for the damages recovered, Belle Wilson was the wife of Harvey R. Tompkins, but was divorced from him in 1889, before judgment was rendered in that case; and it does not appear from the complaint whether or not he was made a party defendant with his wife in that action, wherein judgment was rendered April 30, 1892, although, if we consult the decision in that case, we find that Harvey R. Tompkins was a defendant, and charged as an active party therein. Belle Wilson intermarried with defendant
But our statutes have changed this relation and . liability. Section 2528, Comp. Laws 1888, read-as follows: “All property owned by either spouse before marriage, and that acquired afterwards by purchase, gift, bequest, devise or descent, with the i*ents, issues, "and profits thereof, is the separate property of that spouse by whom the same is so owned or acquired; and separate property owned or acquired as specified above, may be held, managed, controlled, transferred and in any manner disposed of by the spouse so owning or acquiring it, without any limitation or restriction by reason of marriage.” Section 2529 reads as follows: “Either spouse may sue or be sued, plead and be impleaded, or defend and be defended at law.” Section 3428 provides that all compensation due the wife for her personal services is exempt from- execution against her husband. Section 3172 provides that “when a married woman is a party her husband must be joined with her; except, when the action concerns her separate property, or her right or claim, to the homestead-property, she may sue or be sued alone. When the action - is between herself and her husband, she may sue or be-sued alone. When she is living separate and apart from ■ her husband,by reason of his desertion of her, or by.agree-. ment in writing entered into between them, she may sue. or be sued alone.” These statutes have, relieved married
Judge Cooley, in his work on Torts (section 118), says:
*147 “In Illinois it bas been decided that, under the new statutes, the husband is not liable for a slander of the wife in which he did not participate, though the statutes on the subject which were supposed to hare changed the common law were silent as regards the torts, and only purported to secure to the woman her property, earnings, and the full control and enjoyment thereof. This is, perhaps, a sound conclusion. Certainly, the reasons on which the new legislation proceeds are such as to leave the wife to respond alone for her torts, for they assume that she is fully capable of controlling her own actions, and can and will act independent of her husband.” A similar rule is laid down in Kansas. Norris v. Corkill, 32 Kan. 409, 4 Pac. 862. So in Michigan, unless her acts are in some way connected with her husband's authority, or owing to his fault. Ricei v. Mueller, 41 Mich. 214, 2 N. W. 23. In Pennsylvania the husband is not lable, under the act of 1887, for the wife’s individual tort. Kurklence v. Vocht (Pa. Sup.), 13 Atl. 198. In Illinois, Michigan, and Iowa the statutes in relation to the rights of married women have ben held to entitle the wife to recover, for her own use, a damage suffered for a personal tort. In Martin v. Robson, 65 Ill. 132, the court said: “The intention of the legislature to abrogate the common-law rule to a great degree, that husband and wife were one person, and to give to the latter the right to control her own time, to manage her separate property, and conti'aet with reference to it, is plainly indicated by these statutes. While they do not expressly repeal the common-law rule that the husband is liable for the torts of the wife, they have made such modifications of his rights and her disabilities as wholly to remove the reason for the liability.” A liability which has for its consideration rights conferred should no longer exist when the consideration has failed. If the relations of husband and wife have been*148 so changed as to deprive him of all ¡right to her property, and to the control of her person and her time, every prin-, ciple of right would be violated to hold him still respon-. sible for her conduct. If she is emancipated, she should, be no longer enslaved. . ,¡
If we could look into the record and decision of this, court, we should find that Harvey R. Tompkins was made a joint tort feasor, defendant with his wife, Belle Tomp-¡ kins, and that a judgment was rendered against. him,, together with the- other defendants, for the tort com-, plained of. This judgment is still standing against him, as an active participant in the tort, notwithstanding the divorce afterwards obtained by his wife; and if he is released from that part of the judgment which attaches to. him solely as the husband of Belle, and which is transferred to R. G-. Wilson, as his successor to his marital rights with her, then we have two husbands, one succeeding the other, held liable for the torts of the wife. The first husband is held because he jointly committed the tort. The second falls heir to that part of the marital damages thrown off and left him by his wife’s divorce before satisfaction rendered. We are aware of some confusion in the authorities as to the right of the husband to his wife’s personal services, unless the statute expressly confers the right; but when the statute gives, her full control and management of all her property, acquired, before and after marriage, with the rents, issues, and profits thereof, together with the right to transfer, manage, and dispose of the same, without any limitation or restriction by reason of marriage, and the right to sue and be sued, to defend and be defended, the same as any other individual, and exempts compensation due her for her person’s services from an execution against her husband, then these rights necessarily carry with them the right to such of her time, services, and
Under the law and the facts in this case, we hold that the defendant R. G. Wilson is not liable for the torts of his wife, committed before he married her, and while she was the wife of another man. We a.re of the. opinion that the demurrer of defendant R. G. Wilson was rightfully sustained. Comp. Laws 1888, §§ 2528; 2529, 3172; Norris v. Corkill, 32 Kan. 409, 4 Pac. 862; Merrill v. City of St. Louis, 12 Mo. App. 466; 2 Bac. Abr. 61; Martin v. Robson, 65 Ill. 129; Cooley, Torts, 118; 2 Bish. Mar. Wom. § 24, and note; Marks v. Culmer, 6 Utah 419, 24 Pac. 528; Warr v. Honeck (Utah), 29 Pac. 1117; Ricci v. Mueller, 41 Mich. 214.
In Belle Wilson’s demurrer is stated, as the last ground of demurrer, “that the action is barred by subdivision 1 of section 196 of the Code of Civil Procedure” (general section 3145), which limits the right of action to two years. The judgment was rendered April 30, 1892. Plaintiff paid it July 1, 1893, and brought this action June 15,1894. This was an action for indemnity against actual damages, and the party indemnified had no cause of action until he was damaged, and the statute of limitations commences to run from the time the judgment was paid. Oaks v. Scheifferly, 74 Cal. 478, 16 Pac. 252; Wicker v. Hoppock, 6 Wall. 96.
The order and judgment of the trial court sustaining