49 Mo. App. 127 | Mo. Ct. App. | 1892
This action is in equity and is brought by the plaintiff against defendant, her husband. We have set out the pleadings in the statement, to. which
On the thirtieth day of November, 1887, plaintiff and defendant entered into an agreement that they should live separate for a short time. The defendant admits that they agreed to separate for awhile, but averred that such agreement was not willingly made by him, but solely in the hope that they would again unite. Failing to do so, he withdrew from said .agreement and demanded that she return to her home, where he was ready to provide for her, and in which he had kept all the articles described.
It is conceded by the parties that at common law the husband would have been the owner of the articles of property enumerated in plaintiff 7s petition, and her claim or right is based upon section 6869, Revised Statutes, 1889, wherein it is enacted that: “All real estate
It is next insisted that, to vest a separate title in the wife to property given - to her by a person other than her husband, a clear intention on the part of the donor that it is for her separate use must appear. We rule the point against' defendant. The wedding presents given to her before the marriage ceremony were her property “at her marriage.” And the presents which were given to her after her marriage were property which “came to her during coverture, by gift'.” In either instance the property is her statutory separate estate, and an intention on the part of the donor need
It is further insisted that, under the provisions of our present statute, plaintiff had a remedy at law by bringing an action of replevin against defendant, and that, therefore, a bill in equity cannot be sustained. The sections relied upon are the following, in addition to section quoted above (R. S. 1889, sec. 1996): “ A married woman may, in her own name, with or without joining her husband as a party, sue and be sued in any of the courts of this state having jurisdiction, with the same force and effect as if she was a feme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried.” R. S. 1889, sec. 6864. “A married woman shall be deemed feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined asa party: provided, a married woman may invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.”
In our opinion, neither of these statutes authorizes the wife to sue the husband at law. They give her the right to sue without joining her husband ás a party plaintiff — she may bring her action independent of her husband — and a third party may sue her without joining the husband as a party defendant. But she is not. empowered to sue her husband. The unity of husband and wife is not destroyed by these statutes. They are, as before these statutes, one legal entity in the eye of
We are cited to the cases of Larison v. Larison, 9 Ill. 27, and Wilson v. Wilson, 36 Cal. 451, where the husband is sued at law by the wife. In the former case, the action is for injuries to her property; and, in the latter, on a promissory note. But in each case a statute is cited, giving authority in express words for either to sue the other.
What we have said in this opinion sufficiently disposes of the question as to striking out a portion of the answer.
Other points suggested by defendant are not deemed tenable, and the judgment will be affirmed.