| Minn. | Jun 20, 1883
The defendants are husband and wife. The plaintiff, a judgment creditor of the husband, who is insolvent, commenced this action against them both, to enforce ’ an alleged constructive trust, arising under the statute and in favor of the creditor, from a conveyance to the wife upon purchase of certain real estate, the purchase price having been paid, as is claimed, by the husband. Upon the trial, the plaintiff having proposed to examine the wife as a witness in his own behalf, the husband objected upon the ground of the marital relations. The plaintiff, then, for the purpose of making the wife a competent witness in his behalf, moved to be allowed to dismiss the action as to the husband, and to amend his prayer for relief in the complaint “so as to ask for a sale of the interest of said Nellie K. Green in said real property, subject to the rights of her said husband.” The motion was denied, for the reason that, as the learned judge then considered, the husband, the judgment debtor, was a nec•essary party to the action. Upon reconsideration of this ruling, upon motion for a new trial, the court considered that he had erred in his former opinion, and that ip furtherance of justice the motion should
. If the court had refused the motion in the exercise of its discretion, its action could not have been deemed erroneous. But it is apparent that the question was not decided in the first instance upon any ground of discretion, but upon the ground that the husband was a necessary party to the maintenance of the action, and that the court could not allow the amendment to be made, and the action to be proceeded with against the wife alone. This was error, if the reason for the refusal was wrong, and it furnished one of the statutory grounds for the application for a new trial. The plaintiff had a right to the exercise of the discretion of the court upon his motion, if, in fact, the application was one which might have been properly granted. The application might have been granted. The husband was not a party whose presence was necessary to the maintenance of an action to subject the land, to the extent merely of the grantee’s interests therein, to the lien and operation of the judgment. Upon the alleged facts the husband had not, and never had, any title or estate, legal or equitable, in the land. By force of our statute of uses and trusts, the payment of the purchase price by him gave rise to no resulting trust in his favor. So far as he was concerned, the land became the sole and separate property of his wife, in which he had no other interest than he would have, by reason of the marriage relation, in any real property of which the wife might become seized in her owm right. Only to the extent that might be necessary to satisfy the just demands of the creditors of the husband was her title qualified. As to creditors of the husband, he paying the consideration for the purchase, (unless a fraudulent intent should be disproved,) she was to be deemed as holding the property in trust, to be applied in satisfaction of their debts. The husband having no estate in the property, and moreover the plaintiff waiving any possible right he might have to bind or affect, by the judgment in this action, any interests which the husband might assert or claim, it was not necessary that | he be retained as a party.
If the action had been so reformed as to be prosecuted against the I wife alone, she would have been a competent witness for the plain
Order affirmed.