Barrett v. Tewksbury

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. The complaint is for damages for deceit, practiced by the defendant upon the plaintiffs, by means of false representations and fraudulent acts connected with the sale of a lot to them, and other conduct in relation to the same subject, and litigation growing out of it. The pleading is lengthy, and is very minute and circumstantial in its statement of the supposed cause or causes of action. A demurrer was interposed by defendant for, among other causes, a misjoinder of plaintiffs. This ground is well taken. The complaint does not aver that the wife had any separate or several interest in the purchase money paid for this lot, nor in the business which the defendant is charged with having injured by the imputed frauds. At most, the money, and the property bought, if title passed, would seem to be only common property—being possessed or acquired during coverture. For an injury to this, effected by deceit or otherwise, the husband would be entitled to recover. There is no necessity or reason for joining the wife. For any fraud or deceit practiced by the defend [337] ant, whether the injury were wrought through the form of a contract or not—such injury affecting the common property, or the . business carried on by means of the common property—the remedy is by the husband alone, who is the representative of the common property, and has the management and control of it. The possession of the money by the husband and wife, carries no inference that it belonged in separate estate to the wife ; and the deed to the husband and wife, or to either, conveys the premises as common property. (Wood’s Dig. 488, sec. 9.) The complaint in this case is as if it averred that plaintiff had $3,000, which was the common property of himself and wife; and defendant, by means of certain frauds, obtained the same—in consequence of which acts the plaintiff suffered in his business, etc. It is clear that the gravamen of this action is this deceit and consequent loss of and injury to the common property and business; and the wife, having no present separate interest in this property, or in the recovery, should not join in the action. If the action had been brought for the money the wife could not be joined, and the same rule ought to prevail in an action on the case to recover damages for depriving the plaintiff of the money. It is not necessary to notice other points, for this is sufficient, as it goes to the whole complaint. It is immaterial whether the motion to strike out was properly sustained or not; for conceding the appellant to be correct in this respect, the complaint presents, with or without this matter, the same fatal defect. Judgment affirmed.