Wilson v. Garaghty

• Decision Date: 31 October 1879
• Citation: 70 Mo. 517
• Parties: WILSON v. GARAGHTY, Appellant.
• Court: Missouri Supreme Court

70 Mo. 517

WILSON

v.GARAGHTY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Cape Girardeau Court of Common Pleas--HON. HAMILTON G. WILSON, Judge.

REVERSED.

Alex. J. P. Garesche for Mrs. Garaghty, appellant.

1. Mrs. Garaghty is not a proper party defendant. There being in the deed to her no words of exclusion of marital interests, it was an individual estate, over which the husband claimed rights. Bauer v. Bauer, 40 Mo. 62; Tillman v. Tillman, 50 Mo. 41; Paul v. Leavitt, 53 Mo. 598; Valle v. Obenhause, 62 Mo. 85. As the only tenant in possession he was the proper party to be sued. Adams on Ejectment, Waterman's notes, p. 389, § 327; p. 24; p. 283. Her participation in holding the land will be deemed his act. Meegan v. Gunsollis, 19 Mo. 417; Dailey v. Houston, 58 Mo. 361; Park v. Hopkins, 2 Bailey 411; Estill v. Fort, 2 Dana 237; Tobin v. Connery, 13 Ind. 65; Marshall v. Oakes, 51 Me. 308; People v. The Judges, 21 Wend. 20; Gaylord v. Payne, 4 Conn. 190; McGlaughlin v. O'Rourke, 12 Iowa 459; Tanner v. White, 15 Ala. 798; Sprague v. Daniels, 31 Ala. 444; Aiken v. Davis, 17 Cal. 119; Trimble v. Miller, 24 Texas 215; Parke v. Kleeber, 37 Pa. St. 254.

2. Ejectment is a statutory and of course a legal remedy, founded only on a legal title. Hence the general judgment against the wife is void. Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 Mo. 157; Caldwell v. Stephens, 57 Mo. 597; Wernecke v. Wood, 58 Mo. 358; Meegan v. Gunsollis, 19 Mo. 419; Hunt v. Thompson, 61 Mo. 154; Weil v. Simmons, 66 Mo. 620; Jackson v. Bowles, 67 Mo. 614.

R. H. Whitelaw and Ewing, Pope & Hough for respondent.

Mrs. Garaghty was a necessary party as she was a party in interest. 2 Wag. Stat., § 6, p. 1001; Boal v. Morgner, 46 Mo. 48. The deed of trust through which plaintiff claims states that it is the wife's separate property, and she so claims it in her answer. The deed from her husband to her conveys it to her sole and separate use, and her husband swore on the stand it was her separate estate. Even if she was not originally a necessary party she set up an equitable defense, thereby making herself a necessary party.

1. EJECTMENT FOR WIFE'S LAND: husband only proper party defendant, when.

SHERWOOD, C. J.

We are all agreed that this ejectment should have been brought against the husband alone, as it is clear from the deeds adduced in evidence that though at one time his wife, Louisiana, in consequence of the conveyance of her husband to her, possessed an equitable separate estate in the land, yet that in consequence of the subsequent conveyance by them to Patrick Garaghty, and of his reconveyance to the wife, without the use of any words except those ordinarily employed in conveyances, that the wife had no separate estate in the land. This being the case, the husband's marital interest gave him the right to the possession of the land, and he was the only proper and necessary party defendant in an action of ejectment. Hunt v. Thompson, 61 Mo. 148, and cases cited; Boal v. Morgner, 46 Mo. 48. And the result just announced is not at all affected by the facts that she in her answer claimed a separate estate in the property, and introduced testimony in support of such claim, since such testimony, as the case is now presented, could not countervail the force and effect of the conveyances heretofore mentioned. The wife being improperly joined, and judgment taken against both husband and wife, the judgment against the latter was erroneous. Hunt v. Thompson, supra.

2. ____: death of husband: wife's subsequent possession: appeal.

And though the judgment was properly entered against the husband, yet as he was only entitled to the possession of the property during the life of his wife, (so far as shown by the record,) and as pending this appeal, and prior to the submission of this cause, the husband has died, it follows that the suit as to him must abate; this not being one of those instances where a sci. fa. can properly issue; as no one under the circumstances already detailed, can, as to the possession, claim under him, nor, as to such possession, be his representative. For...