Read v. Sang

21 Wis. 678 | Wis. | 1867

Dixon, C. J.

The complaint clearly states a cause of action in which the husband alone is interested. The deed of' the lands in Iowa, conveyed or agreed to be conveyed by the defendant, was made to the husband ; and from all that is alleged concerning the title to the homestead of the plaintiffs in the county of Pond du Lac, the inference must be that it was -in the husband, and that the wife joined in the conveyance to the defendant because it was the homestead and the husband could not otherwise transfer it. If the wife had title to the whole or any part of the homestead, or any separate estate or interest in it, it became necessary for the pleader distinctly to aver the facts, in order that her interest in the action might appear. Without such averment, it will be taken that the property belonged to the husband, and that the wife cannot sue for any loss of or injury to it. Dunderdale v. Grymes, 16 How. Pr. R., 195. See also Duress v. Horneffer, 15 Wis., 195, and eases there cited.

The wife being joined where the husband alone should have sued, the question comes up, whether the objection can be taken by demurrer. There is great conflict of opinion in New York as to whether a demurrer will lie for the misjoinder or excess of parties plaintiff in other cases. Walroth v. Handy, 24 How. Pr. R., 353, and cases cited. But in the case of husband and wife who sue together for a cause of action in the husband alone, it has been held to be a defect of parties for which a demurrer will be sustained. It was so decided in Dunderdale v. Grymes, above cited, and for peculiar reasons, namely, that no judgment can be given in favor of the defendant and against the wife in such cases ; or at all events, that such a judgment would be of no avail to indemnify a defendant for the costs of a suit improperly brought, and therefore justly defended. We adopt the rule of that case, and hold that the demurrer ought to have been sustained.

By the Court. — The order is reversed, and the cause remanded with leave to the plaintiffs to amend their complaint as they shall be advised, and to proceed in the action within such rea" sonable time as the circuit court shall direct.