This is a suit by a wife against her husband and others. The
The bill alleges that Henry I. Kip, the husband of the complainant, on the 12th day of October, 1859, conveyed several tracts of land to one William H. Yan Yorst, upon certain trusts. These trusts were, that the trustee should permit the complainant and her husband, during their joint lives, and the survivor, during his or her life, to possess and enjoy the lands, and to take their rents, issues and profits without liability to account; and on the death of the survivor that the lands should go to such persons as the husband might designate as his devisees by will, or in case of his failure to make a will, then to his heirs at law. The complainant further alleges that she and her husband resided together on the lands so conveyed in trust, until the 1st day of August, 1869, when her husband, of his own accord, and without notifying her of his intention, took up his abode with his daughter Agnes, a child by a former wife, with whom he has continued to reside ever since. The complainant, in the meantime, has lived in the dwelling on the trust property, where she and her husband resided together prior to their separation. The bill further alleges that the complainant’s husband, since their separation, has, in connection with his daughter and her husband, executed three deeds, purporting to convey portions of the trust property in fee, for an aggregate consideration, as shown by the deeds, of $40,840, and that the grantees have entered into possession of the lands so conveyed. The bill also alleges that another portion of the trust property has been conveyed by the complainant’s husband alone, by deed purporting to convey a fee, and that he received as consideration therefor, the sum of $3,360. The bill then avers that the complainant’s husband, on the 1st day of April, 1873, sold the timber from a portion of the trust property, for the sum of $2,000, and that the timber has since been cut and removed. The complainant further says that since her husband separated himself from her, he has neither paid nor furnished her any money, and has contributed nothing to her support except some groceries and other necessaries, amounting in the whole to about $325.
The rights in dispute are purely equitable, but here they must be treated as though they were legal rights. Courts of equity treat trust estates as though they were legal estates, and deal with them as having the same incidents, properties and consequences that belong to like estates at law. In equity they are alienable, devisable, and descendible in the same manner as legal estates. In dealing with them, equity follows the law. Cushing v. Blake, 3 Stew. Eq. 689.
On the argument, the ground mainly relied on by the demur-rants was, that during the joint lives of these parties, the husband is entitled to the whole use and benefit of the estate in controversy, to the exclusion of his wife, and she has no right, therefore, to require him to account, or to compel him to share with her anything he may have received. That, undoubtedly, is the rule of the common law. When an estate in lands becomes vested, during coverture, in husband and wife, the husband is entitled to the exclusive possession and use of it during their joint lives. They are each and both seized of the entirety — -per tout et non per my; and as the existence of the wife, by the common law, is merged in that of her husband, he is the only person, in the eye of the law, who can possess or deal with it. For this reason it has been adjudged that during their joint lives the wife has no interest in or control over an estate thus held. Wyckoff v. Gardner, Spen. 556; Washburn v. Burns,
But conceding that the complainant has a right to the immediate enjoyment of the lands held in trust, and that her estate is, in all respects, equal with that of her husband, still, I am unable to find, in the facts exhibited by her bill, any ground upon which relief can be given to her. This allegation constitutes the very marrow of her grievance: that her husband has, by deeds which purport to convey a fee, conveyed lands in which she has an estate equal with his, and has received the purchase-money thereof. But how does that harm her ? His deed cannot convey or touch her estate. Even if he and she held the legal title to these lands, his deed would be utterly impotent to convey or impair her rights. In fact, his deed can have no more effect upon her rights than the deed of a stranger. While she lives and is of sound mind, nothing short of a written instrument, signed by her, will pass her estate. These propositions need no demonstration.
The bill also alleges that the grantees of the husband, about the date of their respective deeds, took possession of the land conveyed to each, and have since then held the exclusive possession thereof. The grantees are not parties to this suit. It would not, therefore, be proper to decide, in this suit, whether a simple allegation that the grantees have held exclusive possession, without more, is sufficient, as an averment of an ouster, to entitle the complaimant to maintain an action against them. As at present framed, the bill makes a case against the husband’s grantees, if against anybody, but not against him. He cannot be held liable for the wrongs of his grantees.
The nearest approach the bill makes to the specification of a cause of action is found in the averment respecting the sale and removal of timber; but this, I think, is much too vague and uncertain to
admitted or proved, will entitle him to a deeree. 1 Dan. Ch. Pr. 361.
The demurer must be sustained, with costs.