Weston v. Weston

• Decision Date: 31 January 1879
• Citation: 49 N.W. 834,46 Wis. 130
• Parties: WESTON ET AL. v. WESTON.
• Court: Wisconsin Supreme Court

46 Wis. 130

49 N.W. 834

WESTON ET AL.

v.WESTON.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Portage county.

Action by Weston and another against Paul Weston to enforce a mechanic's lien against the homestead of defendant. Judgment was rendered by default. Afterwards Effie J. Weston, defendant's wife, filed an affidavit in the cause alleging that she had previously sued defendant for divorce and alimony, in which the court had awarded her the possession of the premises; that the plaintiffs, who were the father and brother of defendant, colluded with him in obtaining the judgment to defeat her inchoate homestead right; and that, if permitted to defend the action, she could defeat the alleged lien. Her motion to open the judgment and to become a party to the suit was granted, and plaintiffs appeal from the order. Affirmed.Raymond & Haseltine, for appellants.

G. W. Cate, for respondent.

LYON, J.

While it may be true that the statute does not make the wife a joint tenant with her husband of the homestead, or vest in her an interest in the fee, yet it does confer upon her valuable rights therein. It gives her the right of occupancy and enjoyment thereof with her husband as against his creditors, and an absolute veto on his power to alienate it. In case the husband dies intestate, the homestead descends to his widow absolutely, if he leaves no children surviving him, and during her widowhood, if he does. Taylor, St. 1171, § 5. These are additional to her dower right, which manifestly is not merged in the homestead right. Should the husband lawfully devise the homestead to another, or should he die leaving children, and his widow marry, she may assert her dower right, notwithstanding the premises were once the homestead of her husband. In Madigan v. Walsh, 22 Wis. 501, this court found no difficulty in holding that an inchoate right of dower is such an interest in lands as will enable a married woman to maintain an action to set aside a deed thereof to which her signature has been fraudulently obtained. That decision, we think, disposes of the objection that Mrs. Weston has no such interest in the premises affected by the lien judgment as gives her a standing in court to resist such judgment. In addition to her rights under the homestead laws and her inchoate right of dower, she alleges that she is entitled to the possession of the premises pursuant to an interlocutory order of the court in the divorce suit. We infer that she is in possession by virtue of the order, and that such possession is exclusive of her husband. Having these various interests and rights in the premises, it would be a reproach to the law were she denied a standing in court to defend them when they are fraudulently and collusively assailed by her husband and his kindred. We hold, therefore, that Mrs. Weston is a proper party to the lien suit. If not made a party, probably she might maintain an action against the plaintiffs in the nature of a suit to redeem, in which she could contest the right of the plaintiffs to a specific lien for any sum, or show that the judgment is for too large a sum. McCoy v. Quick, 30 Wis. 521. The learned counsel for the plaintiffs claim that the judgment should not be opened to allow Mrs. Weston to defend the action if she is not bound by the judgment; and they cite, in support of their position, Bean v. Fisher, 14 Wis. 57, and Gray v. Gates, 37 Wis. 614. Bean v. Fisher merely holds that a judgment should not be opened to let in a new party whose interests are not affected by it; as, for example, a prior incumbrancer in an action to foreclose a junior mortgage. The same rule was stated hypothetically in Gray v. Gates, but the case turned upon a special statute of limitations relative to opening judgments.

We think the interests of Mrs. Weston may be affected by this judgment, if it is allowed to stand. On a sale under it she is liable to be excluded from the possession of the premises, at least she may be so excluded unless she bring an action promptly, and obtain an injunction to protect her possession. This would or might require the giving of security, which she cannot be required to give if allowed to defend the lien suit. Moreover, in an action thus brought by her, very...