21 W. Va. 694 | W. Va. | 1883
announced the opinion of the Court:
The plaintiff in error has neither argued nor filed any brief in this Court; but in his petition for a writ of error it is assigned that the circuit court erred: (1) In refusing to quash the plaintiff’s summons; (2) In allowing the plaintiff to file her replication to the defendant’s special plea; (3) In not disposing of the question raised by the plea of coverture before submitting the main issue to the jury; (4) Because the jury was not sworn “to try whether the defendant unlaw
These alleged errors taken together present but two legal questions: First — Can a married woman living with her husband maintain an action for the possession of her separate, real estate without joining her husband as plaintiff in the action? and second: "Was there any such defector irregularity in the swearing of the jury or in the verdict as will warrant this Court in reversing the judgment of the circuit coui’t? Without, therefore, noticing separately the plaintiff’s numerous assignments of errors, I shall proceed to consider the two questions stated; and the determination of them in my judgment necessarily disposes of all the said assignments.
Before the enactment of the statute a married woman not only did not hold the legal title to her separate estate, but she could not hold the possession of it. By her marriage she became absorbed in her husband so far as her legal rights to property were concerned. Her goods and chattels and the possession of her real estate became by virtue of the marriage vested in her husband during the coverture. And as courts of law could not regard equitable titles nor permit the recovery of real estate by a person not entitled to the possession, she could not sue at law. But the statue having-removed these common law obstructions and expressly declared that she may sue concerning her separate property without joining her husband, it seems to me, there can be no question or doubt about her right to sue in an action such as this for the recovery of possession of her separate real estate without joining her husband. If she cannot sue at law, she cannot sue at all. Her husband has no title or right to the land, and having the legal title, she cannot sue in equity for its possession. I am, therefore, clearly of opinion that the plaintiff properly brought this action.
Upon the whole record, I am of opinion, that there is no error, for which the judgment of the circuit court ought to be reversed. The said judgment must, therefore, be affirmed with costs to - the defendant in error and thirty dollars damages.-
Judgment Affirmed.