, 1872-05-09

Opinion Of Judge Jacobs,
district Con1t, Port Townsend.

George H. Gerrish. 49,
On demurrer to Phintif's bill.
a husband and wife can not join in
q suit tosset aside marriage contract,
entered into previous to marriage with
a third person as trustee"
JACOBS, edo fl gNg1uggs
A brief statement of the facts as al
legged in the bill and confessed by the
demurrer, is as follows Z 2 FXFTfs 2
Ellen NJ. Streming, one of the Plain
tiffs aforesaid, was the daughter and ON
ly heir of one George Gypson, deceased.
From the death Of the Ancestor down to
the I'd day of Dec. 1870. the Defendant
was the Guardian of the person and es-
tate of said Ellen NJ. Gypson now Ellen
N. Sterming. The property which des-
cended to Ellen NJ. ON the death of her
father was real and personal and of con-
siderable value. 1t is fully described in
the complaint. The Plaintiffs intermar-
ried ON the I'd day of December, 1870;
but before said marriage and in contem-
plation and consideration of the same
Plaintiffs and Defendants entered into
a written Indenture by which the pro-
perty real and personal belonging to
said Ellen n. rs beir-at-law of George
Gypson deceased was conveyed to said
Defendant to be held in trust by him for
the sole use and benefit of the said Ellen
Nj. This 1ndenture or conveyance gave
to her in case of her death during the
life of her said husband, power Of ap-
pointment by will specifying the man
ner of its execution, and it further pro-
vided that in case of default of said ap.
pointment by her in the manner spaci-
fed. that then said property, real and
personal, should be conveyed to those
heirs or personal representatives of Ell
len N who would be entitled to take un-
der the law for the distribution of intes-
tate estates.
The bill alleges that the annual rental
Of said property is one thousand dollars
1t also alleges that said Ellen NJ. did on
the 7th day of December, 1871, notify
the Defendant that she disaffirmed said
conveyance or indenture and demanded
immediate possession Of said property
and an account for the rents, issues and
profits thereof from Defendant.
Ellen NJ, was about Is years old when
she intermarried with Sterming but her
guardian gave his written consent to said
marriage. The first point in Defendants s
demurrer is that as the suit is for and
concerning the separate property of the
wife, that her husband ought not to
have been joined with her rs co-plaln-
tiff. That the suit ought to have been
brought by her as sole Plaintiff or by
her through her next friend and that
her husband ought to have been joined
as Defendant.
Upon a careful consideration of this
point am convinced that upon the bet
ter authorities and upon principle the
husband ought not to have been joined
as co-Plaintiffs. 80
Story, Equity Pleadings. Sec. 63. and
notes. Daniels Ch. Practice, 4th ed,
P. 10S.
This last authority is 20 clear and per-
tinent that we quote paragraph or two:
cit is now settled, that all cases in
(which the husband and wife sue as CO.
Plaintiffs together: or which the hus-
"band sues as next friend of his wife.
-" are regarded as suits of the husband
" alone. =, And it has
"been decided that suit by husband
land wife against the trustee of the
"wife's separate property. cannot be
pleaded in bal to u subsequent suit by
"her by her next friend against the trus-
"tee and her husband, although the re-
lief prayed in both suits is the same.
"fneelefaI theafore. whsss'shs. suit
"relates to the separate property of the
"wife, it is necessary that the bill sl,o'd
"be filed in her name by her next friend.
" otherwise the defendant may demur
upon the ground that the wife might
"at any future time institute new suit
"for the same matter. and that upon
"such new suit being instituted de-
s.cree in o cause over which her husband
..had the exclusive control and authority
would not operate as . valid bar
"asainst her subsequent claim" page
1O9.)
There is seeming conflict in the au-
thorities upon this point but when care
fuIly considered there is no real but on
ly an appsrsnscshaid-x ~
l. All agree that when the interests
of husband and wife are adverse then
they cannot be co-plaintiffs.
q The authorities quite generally
aoree that where husband and wife join
as CO. Plaintiffs it is the suit of the hns-
band.
1Dan. Ch. P. 10s. Ed. and authori-
tics there cited. Story, Eq. P. Sec 63.
note 4.
5. Where the husband has been made
CO. Plsisti4 in ssait ooncerhing the sep
o-st. ,,ron.rtv of the wife and no ohiec-