1

prosecution of herself; the joinder of her husband is improper, since the damages when recovered are her own separate property, in which he has no interest or share; and, on the same principle, a suit for a libel upon herself must be brought by the wife alone.2

§ 158. *214. Actions for Torts to Wife's Property. [In those states where statutes of the second type exist, a married woman] may sue alone to recover damages arising from torts and negligences and other wrongs to her own property; these actions fall within the language of the codes, and plainly "concern her separate property. Thus it has been held that the wife may maintain a suit in her own name to recover damages for a trespass to land owned by her, "although her husband occupied the land in the usual manner with her and their family, and cultivated it, but had no legal or other rights in it."4 If she can prosecute a suit for trespass, she can certainly do the same when the injury is negligent instead of violent and intentional. On the other hand, there are circumstances under which an action should be maintained by the husband alone, although the wife may have or seem to have some interest in the subject-matter of the controversy. Thus, in California he must sue alone in actions relating to the "common property" of the husband and wife, and in those relating to "homesteads " as the same are defined and regulated by the statutes of the State. These subjects, however, depend

1 Musselman v. Galligher, 32 Iowa, 383. [See Williams v. Casebeer (1899), 126 Cal. 77, 58 Pac. 380.]

2 Pancoast v. Burnell, 32 Iowa, 394. See Shuler v. Millsap's Ex'or, 71 N. C. 297. In a suit by a married woman for personal injuries, she cannot recover for the loss of her services in the household; the husband alone can sue for these. Wyandotte v. Agan, 37 Kan. 528.

8 [Hand v. Scodeletti (1900) 128 Cal. 674, 61 Pac. 373; where a married woman sues for conversion of her separate property, it is not necessary for her to allege that it is her separate property where she does not allege in the same count that she is a married woman.]

Boos v. Gomber, 24 Wis. 499. [Prey v. Stanley (1895) 110 Cal. 423, 42 Pac. 908: A wife may bring an action to quiet title in respect of her separate

property even though a homestead has been declared upon the premises for the joint benefit of herself and husband, without joining her husband. A wife may sue alone for the protection of any right she may have in her separate property, even if that right be merely that of a joint tenant. But see Friburk v. Standard Oil Co. (1896), 66 Minn. 277, 68 N. W. 1090, where the court said: "The fact that a wife is furnishing the dwelling in which the family resides does not change the common-law rule that the husband is the head of the family, nor will it give to the wife the right to recover for damages resulting from the maintenance of a nuisance."]

5 Barrett ". Tewksbury, 18 Cal. 334; Guiod v. Guiod, 14 Cal. 506; Cook v. Klink, 8 Cal. 347; Poole v. Gerrard, 6 Cal. 71. [But see Anderson v. Davis (1898), 18 Utah, 200, 55 Pac. 363: when the legal

entirely upon the special provisions of the statutes in the several commonwealths, and have no proper connection with the general system of procedure established by the various codes. It seems that the husband alone can sue for a conversion or loss of or injury to those articles of personal use belonging to the wife, her clothing and ornaments, which at the common law constitute her paraphernalia.1

§ 159. * 245. Tort Actions between Husband and Wife. Whether, under the legislation of the various States, actions for tort can be maintained by the wife against the husband, or by the husband against the wife, does not seem to have been definitively settled by judicial decision. The departure from the ancient theory of the marriage relation has been as great in New York as in any other commonwealth, and yet, as has been shown, the courts of that State have declared against the possibility of actions between the spouses for any personal torts committed by one upon the other, such as libels, assault and battery, and the like.2 The same result would seem to be inevitable under the more restricted legislation of other States, for their statutes which modify the common-law doctrines of marriage are confined in their terms to her power over her separate property and over contracts. Actions between husband and wife, based upon torts done to property, have arisen, but their propriety has not been finally determined. There does not, however, seem to be any real

title to a homestead is in a wife, but the larger portion of the purchase price was paid by the husband, their joint interest in the preservation of the homestead gives them the right to join as plaintiffs in an action to enjoin its sale.]

1 McCormick v. Penn. Cent. R. Co., 49 N. Y. 302, 317. See also Curtis v. Del., L. & W. R. Co., 74 N. Y. 116.

2 See §*240, and notes.

8 Owen v. Owen, 22 Iowa, 270; Davidson v. Smith, 20 Iowa, 466. In Matson v. Matson, 4 Met. (Ky.) 262, the wife sued the husband in an ordinary action to recover possession of slaves devised to her as her separate property, which he refused to deliver to her, no other ground of relief, legal or equitable, being alleged. In reversing a judgment rendered for the plaintiff, Duvall C. J. points out that the husband might, as trustee for the wife of

her separate property, be held accountable, in a suitable case, for the violation of his trust, but that the mere possession of the property by the husband, unexplained, was not such a breach of trust; and remarks: "It is hardly necessary to add that, if she had a right of action at all against her husband, it could only have been asserted in equity;" and that the only practical effect of § 49 of the Kentucky code was to dispense with the intervention of the next friend; that it conferred no new right of action. See also Kalfus v. Kalfus (Ky. 1892), 18 S. W. Rep. 366; and compare Manning v. Manning, 79 N. C. 293.

[But see Gillespie v. Gillespie (1896), 64 Minn. 381, 67 N. W. 20, where it is held that a wife may sue her husband in her own name, in any form of action, to enforce any right affecting her property,

difficulty in principle. If a wife is clothed with full authority over her own property as though she was unmarried, and if, in pursuance thereof, she is permitted to invoke the aid of judicial. proceedings in enforcing contracts against her husband, and in recovering from him the possession of lands and chattels, there can be no valid ground for refusing to her the power of maintaining actions against him for the wrongful taking, detention, or conversion of her chattels, or for injuries done to her property by violence or by negligence.1 Both classes of actions depend upon the same fundamental rights, the rights of property which

the statute fully confers upon her. If the owner may recover from her husband the very thing itself the land or chattel — in a real action, it is not an enlargement of her power to suffer her to recover the value of such things wholly or partially in a personal action. The notion that the proceeding must be equitable is a remnant of the ancient system which has been abrogated, and is conceived in forgetfulness of the radical changes made by the statutes in the common-law theory of the marriage relation. If the facts constituting the cause of action are stated in the pleading, it is both unnecessary and improper to call the action equitable, since the relief, if granted, is the ordinary pecuniary judgment against the defendant personally, and not a judgment in rem against his property.

to sue.

§ 160. * 246. Desertion by Husband as Affecting Wife's Capacity The desertion of his wife and family by the husband does not increase her powers and capacities in reference to the bringing and maintaining of judicial proceedings, unless provision is made for such an emergency by express statute. Thus,

the same as if she were a stranger Also Grubbe v. Grubbe (1894), 26 Ore. 363, 38 Pac. 182. Under Hill's Code, § 2870, providing that either husband or wife, as owner, may sue to recover property of which the other has secured possession or control, either may sue the other at law not only for property wrongfully obtained, but on contracts as well. But under identically the same statute the Supreme Court of Iowa held, in Heacock v. Heacock (1899), 108 Ia. 540, 79 N. W. 353, that a wife cannot sue her husband on his personal contract Iowa code, § 2204.

21 S. W. 354; although contracts between husband and wife are void at law, they may be held valid in equity where they are fair and just. Snedager v. Kincaid (1901), Ky., 60 S. W. 522; under Civ. Code Prac. § 35, the action of an infant married woman for divorce and alimony need not be brought by guardian or next friend, but may be brought in her own name.]

In Wisconsin a husband may maintain "replevin" against his wife for chattels claimed by her to be her separate property; Carney v. Gleissner, 62 Wis.

Bohannon v. Travis (1893), 94 Ky. 59, 493.

after such desertion, the wife cannot maintain an action in her own name to set aside a conveyance of land alleged to have been obtained from him by fraud. In several States, however, the codes contain express provisions, which, in case of desertion by the husband, permit the wife to prosecute and defend such actions as he might have done.2

Third: Equitable Actions.

§ 161.247. * 247. Grand Principle Underlying Equity Doctrine. Scope of Inquiry. The grand principle which underlies the doctrine of equity in relation to parties is, that every judicial controversy should, if possible, be ended in one litigation; that the decree pronounced in the single suit should determine all rights, interests, and claims, should ascertain and define all conflicting relations, and should forever settle all questions pertaining to the subject-matter. Since the chancery judges were not hampered by the legal dogma that one judgment must be rendered alike for all the plaintiffs and against all the defendants on the record, they were enabled to adopt and enforce such practical rules as would render this principle operative and efficient. In disclosing these rules, and in explaining their application, I am not confined to decisions made by courts professedly governed by the reformed procedure. The codes, as has already been shown, have taken the most general doctrines of equity in relation to parties, have put them into a statutory form, and have made them applicable without exception to all actions. Whether these doctrines have been entirely incorpo

1 Green v. Lyndes, 12 Wis. 404. See also Barnett v. Leonard, 66 Ind. 422.

See supra, § 152; Andrews v. Runyon, 65 Cal. 629; Baldwin v. Second Street Cable Ry. Co., 77 Cal. 390; Tobin v. Galvin, 49 Cal. 34 (the statute does not apply where the wife is merely temporarily absent from the husband). [Brown v. Brown (1897), 121 N. C. 8, 27 S. E. 998: Under the constitution and section 1832 of the Code, which declares that every woman whose husband shall abandon her shall be deemed a free trader, a wife abandoned by her husband may maintain an action in tort, in her own name, against a third party.]

8 [In Gager v. Marsden (1899), 101

Wis. 598, 77 N. W. 922, the court said: "It [the Code] was designed to preserve and make more perfect by new forms the method for the settlement in one action, denominated the civil action, of all the rights of a party plaintiff, or parties plaintiff united in interest in the subject thereof, and the rights of adverse parties both as between them, and between themselves, not only as to the subject of the action, but the subjects germane thereto.

The system is complete, as said in Kolloch v. Scribner, 98 Wis. 104, enabling the court in a single action, by the presentation of issues made up by the complaint, answer, and reply, to take within its jurisdiction a single subject or controversy,

rated into the legal actions under the codes has sometimes been doubted; it is universally admitted, however, that they are operative with their full force and effect in all equitable actions which may be brought in accordance with the new procedure. For the purpose of ascertaining the existing rules which control the selection of parties in equitable actions, we are not, therefore, restricted to those States which have accepted the reform; we may and must extend our inquiry to England and to other States of this country wherever equity exists as a separate division of the municipal law. I shall endeavor, in a very condensed and summary manner, to give the doctrine of parties plaintiff, which has been established by courts of equity and in equitable actions, whether prior or subsequent to the great reform introduced into so many of the States, and the result will express the law as it now exists in those States.1

162.

* 248. Equity Rules more Explicit respecting Defendants than Plaintiffs. Two Classes of Co-Plaintiffs in Equity. It is impossible to lay down with precision many rules in reference to plaintiffs, because equity does not particularly concern itself with determining that such a person shall be a plaintiff, and such another a defendant, but rather requires in a more general form that the persons shall be parties, so as to be bound by the

and all parties interested therein adverse to the plaintiffs, and all necessary to be before the court for their due protection and for the determination of the entire controversy, including such matters as may be germane to the primary subject of the action."

And in Siever v. Union Pac. Ry. Co. (1903), Neb., 93 N. W. 943, the court said: "Equitable doctrines with respect to parties and judgments are wholly unlike those which prevail at common law - different in their fundamental conception, in their practical operation, in their adaptability to circumstances, and in their results upon the rights and duties of litigants. The goveruing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in one suit the rights and duties of all the parties which really grow out of, or are connected with, the subject-matter of that suit. The primary object is that all persons sufficiently inter

ested may be before the court, so that the relief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or consequential claims or interests of all may be bound in respect thereto by the single decree." See also Castle v. Madison (1902), 113 Wis. 346, 89 N. W. 156, quoted at length in note to p. 183, ante.

In Tobin e. Portland Mills Co. (1902), 41 Ore. 269, 68 Pac. 743, the court said: "Courts of law require no more parties to an action than those immediately interested in the subject-matter, but in equity all persons, including those remotely interested therein, may be joined, and are often necessary parties."]

1 In this subdivision I have drawn very largely upon the fourth American edition of Daniell's Chancery Pleadings, and the learned notes of Mr. Perkins, the American editor, and have closely followed that most admirable work.