Tallmadge v. Grannis

Waite, J. The rule upon this subject, as settled, by numerous decisions, is, that where the action is merely for the recovery of damages done to the real property of the wife, during the coverture, the husband may sue alone, or his wife may be joined ; her interest, in the latter case, being stated in the declaration. 1 Chitt. Plead. 75. and the cases there cited. Allen & ux. v. Kingsbury, 16 Pick. 235. Clapp v. Stoughton, 10 Pick. 463. Cushing & ux. v. Adams, 18 Pick. 110. Com. Dig. tit. Baron and Feme, X. If the husband survive the wife, he may sustain an action of trespass for an injury done to her land, during the cover-ture ; and if she survive, the action will survive to her. Com. Dig. tit. Baron and Feme, 2 A. But where the demand is for the removal of personal property, as corn or grass, when severed from the land, there [298] the husband cannot join his wife, because the entire interest in the personalty is vested in him. The instruction given to the jury, by the county court, was correct, and consequently, there is no error in the judgment complained of; and so we advise the superior court. In this opinion the other Judges concurred. Judgment affirmed.