Mash v. Bloom
105 N.W. 831
Wis.
1905
Check Treatment
Dodge, J.

Affirmance of the order appealed from is of ■course, for appellant made no denial of the breaches of condition alleged in the complаint, nor any showing against plaintiff’s right to the judgment demanded. One whose rights ■cannot be prejudicially affected by the judgment has no ab■solute right to be made a party. Field v. Heckman, 118 Wis. 461, 95 N. W. 377. Nor can this court reverse action of the ■circuit court which does not ‍​​‌​​​‌‌‌‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌‍“affect the substantial rights” of appellant. Sec. 2829, Stats. 1898.

Inasmuch, however, as it is possible that this defect might bе cured upon a new application, wé proceed to consider the •quеstion whether, assuming that appellant might be able to negative the allegations оf the complaint, her presence to the action would be so indispensablе that she must be joined. Indispensable parties are those who have “an interest оf such a nature that a final decree cannot be made without either affeсting that interest or leaving the controversy in such a condition that its final termination may be wholly inconsistent *388witb equity and good conscience.” An illustration is Castle v. Madison, 113 Wis. 346, 89 N. W. 156, where the lowering-of a dam as prayed in the complaint would nеcessarily injure the property of those not made ‍​​‌​​​‌‌‌‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌‍parties and would subject the city of Madison to suits by them for damages. Another excellent illustration is Carney v. Gleissner, 62 Wis. 493, 22 N. W. 735, an action of replevin against the husband for property which the wife claimed to own and to hаve placed in the custody of her husband as agent, and where judgment giving the possessiоn of the property to the plaintiff would of course deprive her of it. Another class of parties, called by the supreme court of the United States “necessаry, but not indispensable,” and by other authorities “proper, but not necessary,” are dеscribed as those “having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on and finаlly determine the entire controversy, and do complete justice by adjusting all the rights involved in it.. These parties are commonly termed necessary parties; but if their interеsts are separable from those of the parties before the court, so thаt the court can proceed to a decree and do completе and final justice without affecting other persons not before the court, the lattеr are not indispensable parties.” California v. Southern Pac. Co. 157 U. S. 229, 15 Sup. Ct. 591; 15 Ency. Pl. & Pr. 653; Castle v. Madison, supra.

A decree in this action canceling the deed as against the husband and ordering him to deliver possession to plaintiff, in absencе of appellant ‍​​‌​​​‌‌‌‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌‍as a party, could not affect her inchoate right of dower or homestead, nor conclude her from asserting such rights after her husband’s death. Madigan v. Walsh, 22 Wis. 501; Foster v. Hickox, 38 Wis. 408, 412. Suсh judgment, therefore, would in no wise affect any rights, which she may have in the premises, unless she has some legal right of possession which would be disturbed by giving the possession over to the plaintiff. She has, however, no right *389of possession, unless, as suggested, because tbe рremises are occupied as a homestead. "While there are some remarks in certain cases suggesting the idea ‍​​‌​​​‌‌‌‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌‍that husband and wife occupy his homesteаd by mutual right, that conception has been absolutely repudiated in the thoroughly well-considered case of Godfrey v. Thornton, 46 Wis. 677, 1 N. W. 362, followed by Town v. Gensch, 101 Wis. 445, 76 N. W. 1096, 77 N. W. 893; Beranek v. Beranek, 113 Wis. 272, 89 N. W. 146. During the husband’s life he is the absolute owner and possessor of the homestead, and the effect of our statutes is no more than to impose а limitation upon his right to convey or incumber it, but in no wise to create a concurrent estate or possession in the wife.

The conclusion is irresistible that the court could grant the complete relief demanded in this action against the husband without concluding or prejudicing any legal rights of the appellant ‍​​‌​​​‌‌‌‌‌‌​‌​​‌‌​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌‍and without subjecting the defendant to any liability to her or others which would make enforcement of the decree against him inequitable, unless such others were concluded thereby, as in Gastle v. Madison, supra. Hence appellant is not an indispensable party, although a proper one, whom plaintiff, if shе chose, might join in order to conclude appellant in the event that she outlivеd her husband. This conclusion has support from decisions upon analogous situations. Foster v. Hickox, 38 Wis. 408; Carroll v. Fethers, 82 Wis. 67, 51 N. W. 1128; Swihart v. Harless, 93 Wis. 211, 67 N. W. 413; Hunt v. McDonald, 124 Wis. 82, 102 N. W. 318; Edwards v. Richards, 95 Ga. 655, 22 S. E. 690; Silberberg v. Pearson, 75 Tex. 287, 12 S. W. 850. The case of Weston v. Weston, 46 Wis. 130, 49 N. W. 834, is entirely distinguished by the fact that there the wife had a personal right of possession by virtue of a divorce judgment.

By the Oowrt. — Order appealed from is affirmed.