Houx v. Shaw

Emus on, J. This cause was heretofore in this court and is found reported in 18 Mo. App. 45. On a re-trial in the circuit court plaintiff prevailed and defendant appeals. Before the last trial the petition was amended by striking out the name of plaintiff’s husband, leaving her the sole plaintiff. The answer, which was a general denial on the first trial, was amended', the amendment setting up in detail the facts set forth in the opinion, as reported in 18 Mo. App. 45, in addition. There were no instructions offered, save a demurrer to the plaintiff’s evidence, which was refused. Objection was made to any evidence under the petition, for the reason that it was in the name of a married woman, whose husband ■was not joined. This objection was overruled and is assigned for error. When a married woman is a party her husband must be joined with her. Rev. Stat., sect. 3468. By an amendment to section 3296 (Sess. Acts, 1883, p. 113), an exception is made to this as regards suits for property mentioned in that section. In the case of Rogers v. The Bank of Pike County (69 Mo. 560), sections 3295 and 3296 were construed together, and it was held that money arising from the sale of the real estate of a married woman, held by general title, was protected by, and came within, the provisions of [236] section 3296, and that it was “an acquisition of personal property by her means.” The “spirit and intent of the act” is applied. That case must control this, for if the money arising from the sale of her real estate, to which she has only the simple legal title, comes within the provisions of section 3296, so would the product of such real estate. While it was held in that case that the husband must be joined, yet the next session of the legislature amended the section so as to permit the wife to maintain the action alone. Other matters presented were tried in substantial compliance with the opinion given when the •cause was here before. The judgment is affirmed. Philips, P. J., concurs; Hall, J., absent.