The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-09-30
YEARS IN COURT
One More Victory Gained by a Helena
Woman for Her
Land.
An Interesting Chapter In a Fight
for Original Townsite
Lots.
The Litigation Started In 1877. and Is a
Familiar Old Timer on the
calendars.

An important decision affecting the rights
Of women was delivered in department. No.
2 OF the district court yesterday by Judge
Buck in the case of William Fl. Allen vs..
Eliza Roush. In deciding the case the
judge said: The questions to be deter
mined in this action depend upon facts
substantially as follows: The defendant, a
married woman, received a probate judges
deed In 1870 to the town lots in controversy.
soon after she and her husband mortRaged
the same to one Fort. The mortgage was
foreclosed, and Fort became the purchaser
Of the property at sheriff's sale, in 1871.
Soon after his purchase of the property he
sold 1t to the plaintiff, who took possession.
In 1872 defendant and her husband com
menced an action against Fort to sst aside
the sheriff's sale and for restoration of the
premises. No notice of lis pendens was
ever filed by tho Roushes. az required by
the statute to affect persons not parties to
an action concerning real estate with con-
Btruotive notice OF q litigation; and plain
tiff states that he had no actual notice.
The Roush-Fort suit lasted a number of
years by reason of appeals to the supreme
court of the United States; but was finally
decided in favor of the Roushss. Allen.
meanwhile, had retained possession.
Shortly after. or before the final determi-
nation, defendants husband died. The lots
were then. in 1891, restored to the defend
ant under q writ Of restitution. Plaintiff
sues in eiectment. basing his title on ad-
verse possession OF tue premises. During
their marriage the Roushes had a child;
and therefore the husband, If he had sur
vived defendant, and she had left
these lots as a portion of
her estate, would have been entitled to
courtesy therein. Under the above condi-
lions has the plaintiff acquired title by ad-
verse possession? Section 80, compiled
statutes, which applies, provides that no
rights by adverse possession can be ac-
quired against a married woman il her hus-
band was a necessary party to a suit that
might have been instituted by her for the
assertion of her right to real property.
Section z, codifed statutes of 1872, how
ever. is as follows: when a married
woman is a party her husband shall be
joined with her. except that when the
action concerns her separate property she
may sue alone" In order to decide
whether Mrs. Roush's husband would have
been a necessary party to any suit she
might have instituted against the plaintiff
during the period in which he claims his
adverse right was acquired, it will irst be
necessary to interpret section 1882, COM
piled statues. This is as follows: THAT
the property owned by any married woman
before her marriage, and that which she
may acquire after her marriage, by descent,
gift, grant. devise or otherwise, and the in
crease, use and profits thereof. shall be ex-
empt from all debts and liabilities Of the
husband, unless for necessary articles pro-
cured for the use and benefit Of herself and
her children under the age of eighteen years;
provided, however, that the provisions of
this chapter shall extend only to such
property as shall be mentioned in p list of
the property of such married woman as is
on record in the office of the register of
deeds of the county in which u married
woman resides"
y Was it the intention OF the legislature in
the enactment OF this statute in 1864 to be-
htow upon a married woman, in reference
70 her duly listed property, the status of a
femme sole? If IL was. then the plaintiff
must recover. Did the legislature really
intend. however, that property of a married
woman listed in pursuance of said section
should be absolutely Invested of any con-
troll or property right on the part of the
husband? fit was, sec. z, codifed statutes.
VI 4ot@t 1boNo AuOICdy WoulA "a COAIbcs Ap-
ply, and there would have been no necessity
for q ioinder of her husband in any action
concerning these lots which might lave
been instituted by the defendant. 1t ia to
lie borne in mind that the deed of these
lots to defendant contained no provision
that they were to be held to her sole and
separate use. The ding of the deed,
however, as decided by our supreme court.
was a compliance with said section, and
freed the lots from the debts and liabilities
of the husband to the extent therein
declared. AT common law a husband had
an estate in the realty of his wife during
the coverture. He could exercise almost
full control Of it. In England, particularly
within the present century. the court of
chanoery has gradually formulated an
equitable system for the protection OF the
property rights of married women
which has done much to OBJ
viate any harshness often incidental to the
common law rule. In the United States,
on the other hand. statutory enactments
have brought about in almost all the states
n similar result. The decisions OF the
various states of the union of late years on
the status of a married woman's property
tights depend. as a rule on statutory
enactments.
These statutes vary greatly in the differ
ent states. and | have been unable to find
any decision constituting a statute identical
in phraseology with section 1432. In many
Oh tue SbateS the prppeIGysO E u married
woman is declared to be, her sole and sep
arate property upon q compliance with
statutory requirements. But i'll almost all
of the decisions under those statutes n re-
luctanoe is manifested by the courts (f the
legislative language ia at all doubtful) to
ignore the common law and absolutely an
initiate the mutual property relations of
husband and wife. Is section 1882 broad
enough to admit of the construction that n
husband has no right whatsoever in the
listed property of his wife? The section
no where expressly declares this. II only
frees such listed property from debts and
Liabilities of the husband, unless con-
traoted for necessary articles for the wife
and minor children. by tho force of its
own terms a husband apparently can bind
such listed property to pay for necessary
articles for the wife and their minor chill
dren.
At the time this section l, 432 was adopted
the legislature also declared that the COM
mon law of England. in so far as generally
applicable, should also be in force. Fur
thermore. other ennctmentsb by tho logisla-
lures of Montana, passed subsequently, to
said section ABB, would seem to conflict
with the theory that it was intended that
this section should give to married woman
the same status as a femme sole. The Sole
Trader nets of 1874 md 1891, the Married
Woman's net of 1887, the sections of the
compiled statutes regulating the convey
ance, and disposition by will, of he prop.
erty by q married womnn-Rnd particularly
the Dover and Courtesy act of 1TS6-all in
dictate the contrary. In tho acts last re-
ferred (see nets of 1876, page 63), section