Boos v. Gomber

Dixon, O. J. This is an action for trespass for breaking and entering the close of the plaintiff, and tearing down her fence, [286] and leaving her land uninclosed. The premises in question are the separate property of the plaintiff, a married woman, who, together with her husband, resides upon and cultivates them. These facts appearing at the trial, the county judge nonsuited the plaintiff, on the ground that the possession was that of the husband, and that the wife could not bring suit in her own name for injury to it. It was expressly agreed by the counsel at the time, that there was no bargain, lease or special contract between the husband and wife in relation to the occupation of the land, except that he was her husband, and that he had no other possession of the premises than that appertaining to the husband living with his wife, upon her separate real estate. Upon these facts the question arises, whether the husband is to be deemed to have been in possession of the land, so that suit must be brought in his name, or whether the wife was in possession. The title of the land was in the wife, and under the statute she was entitled to hold it, and the rents, issues and profits, to her sole and separate use, in the same manner and with like effect as if she were unmarried; and the same was not subject to the disposal of her husband. The title being thus in the wife, and she entitled to the exclusive possession, and at the same time occupying the premises, the question is, whether any change of possession from her to her husband is to be inferred from the mere fact that she permits her husband to reside with her upon the land, and to aid her in the cultivation of it. A very similar question arose in the case of Feller v. Alden, decided at this term. We there held, that it was not to be inferred that the husband was tenant, or that he had any legal title to the crops or stock raised upon the wife’s land, simply because he worked upon the land and assisted in raising them. So here, if the statute giving rights to married women is to be held to mean any thing, we think it very clear, that it is not to be inferred that the plaintiff has lost the possession of her land merely because she allowed her husband to reside with her upon it, or to assist [287] her in cultivating it. To work a change of ber possession, something more must be shown — such as a lease or contract by which her intention to part with her possession and control of the premises is clearly made to appear. By the Oov/rt. — Judgment reversed, and a new trial awarded.