Upson v. Swezey

Park, J. We see no error upon this record. The legal title to the chose in action sought to be recovered was by statute vested in the husband as trustee of his wife. Gen. Statutes, tit. 13, sec. 19; Baldwin v. Carter, 17 Conn., 201; Winton v. Barnum, 19 id., 71; Riley v. Riley, 25 id., 154. The action therefore should have been brought in the name of the husband, as trustee for his wife, as he alone had the legal title; for the right of action at law is vested solely in the party having the legal title, in exclusion of the mere equitable interest. 1 Chitty Pl., 2; Sanford v. Nichols, 14 Conn., 324; Treat v. Stanton, id., 445; Smith, Trustee, v. Chapell, 31 id., 589. The joinder of the wife therefore with the husband in this suit was a fatal misjoinder. Gaylord v. Payne, 4 Conn., 190; Johnson v. Huntington, 13 id., 47; Pettibone v. Phelps, id., 445. But it is said that the statute of 1873 allows the joinder of husband and wife in cases like the present one. The second section of that act is certainly a very peculiar one ; but whatever may be its meaning, or to whatever cases it may apply, we are satisfied that it was never intended to apply to cases pending when it was passed. It makes no provision for such cases, but on the contrary its language is prospective. If the section had intended to apply to existing actions, it would have prescribed some mode for citing in the wife as a party plaintiff or defendant, if she should not voluntarily appear to prosecute or defend the suit. There is no error in the judgment complained of. In this opinion the other judges concurred.