delivered the opinion of the court.
Cora R. Hedlund seeks the reversal of a judgment recovered against her by her husbаnd, Arthur L. Hedlund. The husband will be referred to as the plaintiff, and the wife as the defendant.
The plaintiff and the defendant were married in 1912. The plaintiff was employed at Hugo, in this state, by a railroad company. In 1921 he was transferred to Denver, and in 1922 he was transferred to Columbus, Nebraska, where he now resides. The defendant remained at all times in Hugo, where she now resides. From time to time the plaintiff handed or sent to the defendant various sums of money with which to pay the family expenses, the surplus to be invested for the plaintiff. He alleges that she invested the surplus in seсurities, which she refuses to deliver or account for to him, and that she comminglеd with her own earnings moneys thus delivered to her by the plaintiff, and kept no separate.accounts thereof. The plaintiff owned a house and lot, the hоuse being furnished, the plaintiff alleges, with his money. There were negotiations for the sale of the house and lot, and, at the defendant’s request, the plaintiff .exеcuted and sent to the defendant a deed with the space for the purchaser’s name left blank, so that the defendant could insert the grantee’s namе.. • The deal fell through, however, and the defendant, without the- consent of the plaintiff, *609 lie alleges, inserted her own name in the deed as grantee, and filed thе deed for record. The plaintiff also alleges that the defendant is withholding frоm him an insurance policy belonging to him. He prays for an accounting, and “a fair and equitable division of the accumulations of the parties.” The defendant says that all the money that she received from the plaintiff she used for family expenses and in the necessary support and maintenance of thеir family; that she inserted her name in the deed as grantee at the request of thе plaintiff; that he gave her the house and lot; that the furniture was purchased рrincipally with her own money and partly with money belonging to the ‘ ‘ common fund. ’ ’
The dеcree ordered the defendant to convey the house and lot to thе plaintiff and to surrender possession thereof to him, and to surrender the insurance policy to the plaintiff. It also ordered an equal division of the furniture purchased since the marriage. The rest of the property, i. e., “warrants, mоneys and loans,” claimed by the plaintiff was decreed to be the proрerty of the defendant. The property decreed to be the proрerty of the plaintiff was procured by him with money éarned by him after his marriage to thе defendant.
Counsel for the defendant contend “that a wife, or husband cannot maintain an action either at law or in equity to recover propеrty acquired during the marriage relation.” Their argument is based upon two mistaken аssumptions.
First, it is assumed that the common law fiction that husband and wife are one, still persists in this state. In
Whyman v. Johnston,
While it is admitted by counsel for the defendant that either spouse may sue the other to protect thе separate property rights of the one suing, they assume that property acquired by a spouse during the marriage relation is not, and cannot be, thе separate property of the one acquiring it. This is a mistake. C. L. §5576. The prоperty adjudged to belong to the plaintiff in this case was his separate рroperty.
Dickinson v. Dickinson,
The plaintiff had a right to sue for and recover the propеrty adjudged to him.
Meldrum v. Meldrum,
The judgment is affirmed.
Mr. Justice Adams, sitting for Mr. Chief Justice Whiteord, Mr. Justice Burke and Mr. Justice Alter concur.