Wilson v. Garaghty

Sherwood, C. J. — 1. Ejectment for wife’s land: husband only proper party defendant, when. We are all agreed that this ejectment should have been brought against the husband alone, as it is clear from the deeds adduced in evidence thatthough at one timehis wife, Louisiana,m consequence of the conveyance of her husband to her, possessed an equitable separate estate in the land, yet that in consequence of the subsequent con 519 veyance by them to Patrick Garaghty, and of his reconveyance to the wife, without the use of any words except those ordinarily employed in conveyances, that the wife had no separate estate in the land. This being the case, the husband’s marital interest gave him the right to the possession of the land, and he was the only proper and necessary party defendant in an action of ejectment Hunt v. Thompson, 61 Mo. 148, and cases cited; Boal v. Morgner, 46 Mo. 48. And the result just announced is not at all affected by the facts that she in her answer claimed a separate estate in the property, and introduced testimony in support of such claim, since such testimony, as the casé is now presented, could not countervail the force and eflect of the conveyances heretofore mentioned. The wife being improperly joined, and judgment taken against both husband and wife, the judgment against the latter was erroneous. Hunt v. Thompson, supra. 2 _. death of husband; wife's subsequent possession: appeal. And though the judgment was properly entered against the husband, yet as he was only entitled.to the possession of the property during the life of his wife, (so far as shown by the record,) and as pending this appeal, and prior to the submission of this cause, the husband has died, it follows that the suit as to him must abate; this not being one of those instances where a sci. fa. can properly issue ; as no one under the circumstances already detailed, can, as to the possession, claim under him, nor, as to such possession, be his representative. For these reasons, and for the error committed in making the wife a party defendant, the judgment will be reversed, and since the wife did not occupy toward her husband the position of terretenant, but has become subsequently to, and in consequence of, his death, entitled to a new and independent possession of her own, it follows that plaintiff had no cause of action against her at the commencement of this suit, but will be driven to a new action; we, therefore, make no order remanding the cause. All concur.