Wolf v. Banning & Bucknell

By the Court — Flandrau, J. —The action being an equitable one, the order is clearly appealable under section 74 of page 470 of the Revised Statutes. The action being to foreclose a mortgage made by husband and wife on the separate estate of the wife, the husband was of course a necessary and proper party defendant, both from his interest in the land as husband, and big personal liability on the note to which the mortgage was collateral, for any deficiency that might remain after the sale. When husband and wife are joined as defendants, it is his duty to appear and answer for himself and wife jointly. Leavitt vs. Cruger and wife, 1 Paige, Ch. R. 421; XI How. Pr. [205] R. p. 43; Ferguson vs. Smith et al., 2 John. Ch. P. 139. Blit ii‘ there is any reason why the wife should answer separately, permission can be obtained to do so, on application to the Court for leave. 1 Paige 421, 2 John. Ch. P. 139, 2 Maddock's Chancery 269, 13 Ves. 266. “ If a feme covert who is a defendant puts in an answer separately from her husband, without leave, the Court, will on motion, quash it.” Perine vs. Swaine et ux. and Dunn, 1 John. Ch. R. 24. The husband is the legal guardian and protector of the wife, and it is for the Court to judge of the sufficiency of the reasons for her answering separately, and not herself. There is no doubt of the propriety, as well as the establishment of this rule. The Statute of this State providing for the appearance of the wife R. S. p. 333, Sec. 30, as amended p. 8 of anendments of 1852, is quite obscure, and while it remained the same in New York as it is now with us, it never received any satisfactory solution, but was interpreted to mean exactly opposite things by different Judges, 9 How. Pr. P. 266 and 466, until in 1857 the Legislature, by amendment, did away with the necessity of a next friend for a married woman in all cases. Goodall vs. M’Adam and wife 14 How. Pr. P. 385. Very little light can be obtained from that source, except such as may be collected from the reasons given for the several positions taken. Our Statute is as follows : “ Sec. 30. When a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property, she may sue alone; and when the action is between herself and her husband, she may sue or be sued alone. But when her husband shall not be joined with her, she shall prosecute or defend by her next friend or guardian except in actions between herself and husband.” It is evident that a next friend or guardian is intended to be made necessary in some instances in which the wife is a party, and that the husband shall stand in that relation in some cases, and that in others she may sue or be sued without the intervention of either. I will endeavor to analyze the section and classify its provisions. [206] There is but one instance in which a married woman can appear without either her husband or next friend, and that is when the action is between herself and her husband; in this case she appears, and prosecutes or defends as if she were single. "When she is Plaintiff in an action concerning her separate property, it is optional with her, whether or not she will join her husband ; “ she may sue alone;” but if she joins him, then there is no necessity for a next friend, because he is her legal guardian and protector, and it is only “ when her husband shall not be joined with her,” that “she shall prosecute or defend by her next friend or guardian;” if she does not join him she must have a next friend. When the wife is sued in an action concerning her separate property, and the husband is not joined with her, which would, be regular where the property is free from any interest or control of the husband, she must appear by next friend or guardian, and the husband may be appointed as such; if he is joined as defendant there is no necessity for any further guardian or next friend. But as in the case at bar, if the action concerns the separate estate of the wife, and the husband has been joined as defendant, when there are any reasons why the husband should not appear as the representative of the wife’s interest, the Court will permit them to sever in their defences, and appoint a next friend for the wife; but it is irregular for the wife to answer alone without the leave of the Court, as the husband, until the contrary appears, is presumed to be the proper person to guard the interests of the wife in all cases ; and it is equally irregular to select a next friend without the approbation and appointment of the Court. It is unnecessary to determine whether the Court below decided correctly in striking out the several portions of the answer of the Defendant, Iienry C. Wolf, as the several answers were irregular, and should have been quashed. So far as the decision of the Judge below goes it is correct. It should have dismissed both the answers, and either allowed the wife to make an application for leave to answer separately, or have heard such application on the motion, after de [207] terminiug tbat tbe answers could not stand. As tbis Court is not in possession of tbe facts sufficiently to determine tbe propriety of allowing tbe husband to represent tbe wife, (altbougb from tbe tenor of bis answer it appears tbat he is desirous tbat her defence, if she has any, should obtain,) and as it seems tbat tbe Court below never acted directly upon an application to allow tbe wife to answer separately, we will not act upon tbis question, but send tbe case back to tbe Court below, granting tbe Defendant, Maria A. Wolf, permission to apply for leave to answer separately by a next friend. A married woman may pledge her separate estate to secure the, debts of her husband, and become bis security, and she is entitled to tbe same rights and immunities as attach to the relation of principal and surety betwfeen strangers. If tbe Defendant, Maria A. Wolf, has any defence, she should have an opportunity of pr'operly laying it before tbe Court. Niemcewich vs. Gahn, 3 Paige Ch. R. 514; 2 Story’s Eqr. Jur., Sec. 1373, and cases cited 1 Maddock’s Chancery 585. Tbe order is so modified tbat tbe Defendants may apply to tbe District Court for leave to answer separately within twenty days after service upon them of tbe order to be entered on tbis decision, on tbe payment of ten dollars costs of tbe proceedings in tbis Court to tbe Plaintiffs’ Attorney.