26 Mich. 68 | Mich. | 1872
This is an action of ejectment for about eleven acres of'
The only questions in the case relate to this parcel, there being no controversy about the residue. Van Fossen recovered, judgment for the whole premises. It was conceded, on the trial, that Mrs. Hodson was in under a deed from Mrs. Van Fossen, wife of the plaintiff below. It also appeared that Mrs. Van Fossen’s title depended upon a deed to her by an attorney in fact, empowered by herself and husband to make conveyance. It was not pretended, on any hand, that Hodson, who was defendant, had asserted any other claim or right than such as belonged to him in his character of husband of the person who claimed to be the owner under the deed from the wife of the plaintiff below, and who was in possession. The suit being against Hodson alone, Van Fossen was permitted, against a' seasonable objection, to go into evidence that the deed from the attorney to Mrs. Van Fossen had never been delivered, and it is too plain to be disputed, that the real and only object of the suit was to try the validity of that conveyance and obtain an adjudication upon the title of Hodson’s wife.
The suit was not rightly constituted for that purpose. Mrs. Hodson, not being a party, no judgment respecting the title could affect her rights, and a judgment against her husband, if of any legal value whatever, could not be the basis for disturbing her possession, or warrant his expulsion from her. The continuance of her right and possession includes the right that her husband may occupy with her, and this cannot be taken away by an ejectment process against him alone. The proceeding rvas erroneous and fruitless. In cases like the present, where husband and wife occupy together the wife’s lands, or lands colorably
The judgment must be reversed, with costs of both courts.