15 Wis. 589 | Wis. | 1862
By the Court,
Appeal from an order overruling a demurrer to tbe complaint in an action to foreclose a mortgage. Tbe defendant Caroline Z. Greenman is a married woman, and tbe objection is that tbe husband, Charles Greenman, is not a party. Tbis is tbe only point urged upon tbe demurrer, and arises out of tbe following facts stated in tbe complaint. The mortgage was executed by Elijah Goodrich, since deceased, and tbe defendant Polly, bis wife, now widow, in tbe year 1850. Elijah died in 1853, having
In support of tbe demurrer three positions are principally taken in argument: 1st. That tbe husband, though he have no interest in the subject of this action, is a necessary party, because he is the lawful protector of his wife’s interests. This is put upon what is claimed to have been a rule of the common law, which it is said remains unchanged by the statute removing the disabilities of coverture and enabling married women to hold and dispose of their separate estates. 2d. That the husband is directly interested by reason of the rights which may accrue to him as tenant by the courtesy. 8d. That the statute, sec. 15, chap. 122, E. S., requires him to be joined.
Upon'the two first points, and without the statutory provision, we are clearly against the defendants. The foundation of the common law rule requiring the husband to be joined in actions which concern the estate of the wife, was very obvious. They were one person in the law, “ and the husband was the one.” From this unity of person came the unity of interest, which the husband invariably represented. If tbe wife was seized of an estate of inheritance in land, the husband became seized of the freehold jure uxoris, and took the rents and profits during their joint lives. If there was a child of the marriage born alive, for this the husband took an estate absolutely for life as tenant by the courtesy. 2 Kent’s Com., 180. If the wife had an estate for her life or for the life of another person, the husband became seized in her right and was entitled to the profits during marriage. Her chattels real were his to dispose of by any act in his life time; and her cboses in action vested absolutely in him on being reduced to possession. Idem, 134, 135. There was, therefore, no mystery in the rule requiring the husband to
If there be anything in the idea that the husband was formerly joined in order to protect the wife’s interests, which seems wholly unsustained, it is effectually removed by the statute. If he has no interest in or dominion over her property, it is difficult to perceive how or why he should control her litigation in respect to it. If his advice and comforting assurances are wanted, they can be afforded as well without as with his being a suitor before the court. Indeed, with husbands of a genus irritohile, exemption from suit may be supposed greatly to 'increase the advantages to be derived by the wife from that source. At all events, one would think it more in harmony with the liberal spirit of the law, and less likely to excite domestic strife, if the wife were allowed to conduct her litigation in her own way, without interference on the part of the husband, except where she condescendingly asked his opinion; in which ease he could give it without being yoked up with her in the controversy.
As to the possible interest of the husband as tenant by the courtesy — that too is gone by the statute, save as to lands of which the wife dies actually seized. Smith vs. Kingsley, 14 Wis., 360. During her life the husband has no present interest, and she has that absolute power of disposition which pertains to a feme sole. She may mortgage or convey un
This brings us to the third and-last position of the counsel, in which we think they must be sustained. The statute referred to reads as follows: “ When a married woman is a party, her husband must be joined, except that — 1. When the action concerns her separate property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone.” This language is plain and unambiguous, and the case not within the exceptions. The husband must therefore be joined, even though he can take no part after he is brought in except to admit or deny that he is the husband of Mrs. Greenman. It is idle in such cases to look to the reason of the law, or to some other statute founded upon more rational principles, for an excuse to evade the act in question. The legislature, not infringing the constitution, have the power arbitrarily to say what the remedy shall be in such cases, and to prescribe its form. Having declared that the husband must be joined, the court cannot say that he need not, simply because such a proceed-
Mrs. Greenman, as the owner of the equity of redemption, or a part of it, is a necessary party to the action. Story’s Eq. PL, § 195. All the defendants, therefore, have the right to insist on the husband being joined in order that she may be properly before the court, and for that purpose they may demur.
The authorities cited by the respondent's counsel (8 How. Pr. R, 895, and 29 Barb., 517) were both suits by the wife concerning her separate estate, and not against her, and are consequently inapplicable. Besides, the statute under which the last case arose, as given by the court, is quite different from ours.
Order reversed, and cause remanded for further proceedings according to law.