Rose v. Bell

By the Court, Johnson, J. It is impossible for the plaintiff to maintain this action against the defendant Sylvia Bell, upon the undisputed facts of the case. She is the wife of [27] the other defendant, and lives with her husband, upon the premises in question, and has not, and never had, any separate estate. The contract, between her and the plaintiff, which was read in evidence, and by which she agreed to purchase the premises in question, and the plaintiff agreed to sell, and to convey to her, upon the payments being all made, is a mere nullity. It conferred no rights, and imposed no obligations upon either party. It was an attempt to deal with a married woman upon credit, in real estate, in the absence of her husband, and without his knowledge or consent, as is expressly shown by the evidence. The contract does not purport upon its face to have been made on behalf of the husband, by the wife, but entirely in her own separate right, as well as name. Indeed it is expressly alleged in the complaint that the defendants both entered into possession claiming in right of the wife. All the disabilities of coverture, on the part of a married woman, are still in force, except such as have been removed by the legislature. The legislature have not yet gone quite to the extent of authorizing a married woman, especially if she has no separate estate, to purchase land upon credit. Indeed it is quite apparent that they never contemplated giving a married woman the power to speculate in real estate, upon her own credit, whether she had a separate estate or not. Even if the act of 1860 (Sess. Laws of 1860, ch. 90) could, as I think it cannot, be construed to confer such authority, this pretended contract was previous to that act, and can derive no aid from it. It is unnecessary to cite authorities to show that, at common law, such a contract by a feme covert was entirely nugatory. The possession was, therefore, in law, the possession of the husband, and in no respect that of the wife. This being so, she was improperly joined in the action, and was, of course, entitled to a nonsuit, or to a verdict in her favor. The question then arises, whether the action can be maintained against the husband, or must fail altogether. In ac [28] tions of this kind where thel'e are several defendants, if the. verdict he for the plaintiff it shall he against such of the defendants as were in possession of the premises, or as claimed title thereto at the commencement of the action. (2 R. S. 307, § 30.) It appears from the evidence that Philander F. Bell, the husband, was iti possession, at the commencement of the action, claiming in his own right. [Monroe General Term, September 1, 1862. A nonsuit was claimed on behalf of the husband Upon the ground that the complaint alleged that he was in possession claiming in right of his wife, whereas it appeared by the evidence that he was in possession claiming in his own- right. This presents a question of mere variance between the pleadings and the evidence. The plaintiff makes out a clear title to the premises, derived from the defendants, and there can be no doubt that the husband was in possession wrongfully at the commencement of the action. This variance is' in no respect material in regard to the merits of the action, as far as the husband is concerned, and there is no pretense that he was, or could have been, misled to his prejudice. It was a case, therefore, in which the court might have directed the fact to be found according to the evidence, and ordered an immediate amendment of the complaint, Without costs, under § 170 of the code. As a joint verdict however was ordered, which was excepted to, there must, for aught I can see, be a new trial, which is ordered; costs to abide the event. Johnson, Welles and J. G. Smith, Justices.]