Green v. Lyndes , 12 Wis. 404 ( 1860 )

By the Court,

Cole, J.

We cannot understand upon what principle tbe complaint in this case can be sustained. Tbe action is brought by tbe respondent, a married woman, by her next friend, for tbe purpose of having tbe appellant enjoined and restrained from selling or disposing of four school land certificates, which bad been assigned to him by her husband, and to have tbe certificates assigned and delivered up to her. It is alleged that one of tbe forty acre tracts mentioned in tbe complaint and covered by one of tbe certificates, (but which one does not appear,) was, at tbe time tbe certificate was assigned, occupied by tbe husband and respondent and their family as a homestead, and that tbe same then was, and still is, tbe homestead, used for agricultural purposes. It is also alleged that the husband has abandoned bis marital rights — has deserted bis wife and infant children, and ceased to provide for their support; that be has left tbe state and gone to Kansas or California to reside; tliat . be lias become an habitual drunkard, with a mind and memory impaired by dissipation; that the respondent and family are entirely dependent for their support upon the proceeds arising from the cultivation of the lands described in the complaint, and if deprived of the possession of such lands, they will be without a homestead, and destitute of all means of support. It is further stated that the wife did not join in the assignment of the certificates, and the complaint contains many other allegations not material to this discussion.

Now it is undeniable that the case presented by the complaint is one which appeals strongly to human sympathy, and excites a wish that it was -within the power of human tribunals to relieve from such calamities. For we all admit that it is the duty of the husband and father to live with, comfort and support his wife and children, and that this duty is of the highest and most universal character. It is an obligation springing from the marital and parental relation, and one which the affections and feelings of our nature instinctively prompt us to recognize and observe. And yet there is no power in the courts to compel a husband and father to exercise the virtues of temperance and frugality, to make him live with and comfort his wife and children; and but little power to compel him to contribute to their support. Sometimes society, through its pauper system, seizes upon and appropriates the property of the husband and father to the support of the destitute wife and children; but the state is impotent to prevent a man from becoming a spendthrift and squandering his substance. In the present case, the respondent does not sue to recover her separate property. The action proceeds upon the theory that because her husband has deserted her and his infant children, she can therefore maintain this suit in her own name, to recover his property and set aside his contracts. At least three of the school land certificates mentioned in the complaint were under the absolute dominion and control of the husband. He could do with them as he saw fit. B ut it is said that the law of this state secures to the wife and family the possession of the homestead, and that therefore the assignment of the certificate embracing the homestead is void, because the wife did join therein. Assuming that this is a correct proposition of law, and that the interest of a party under a school land cer-trficate is such an ownership in the land embraced therein as brings it within the homestead exemption act, and that such certificate cannot be alienated or transferred by the husband without the signature of the wife to the same, does this view essentially change the merits of this case, and improve the right of the respondent to maintain this action? We cannot see that it does. Bor if, as the argument assumes, the assignment of the certificate embracing the homestead is void for want of the signature of the wife, then how can she possibly be injured by that assignment ? The respondent remains in possession of the homestead and cannot be dispossessed thereof by the purchaser of that certificate. She can defend her possession against him, and possibly this is her real and only remedy, though upon this point it is not proper that we should express any decided opinion, as the question is not properly before us. But we are clear that tile respondent does not show that she has such an interest or title, legal or equitable, in the certificates named in her complaint, as entitles her to have them reassigned anchdelivered up to her. Neither can she maintain the suit for the jrarpose of removing a cloud upon her title to the land. But the most favorable view which can be taken of the case for the respondent is, that the assignment of the certificate embracing the homestead is absolutely void, and, if so, how can she be injured by it ? She may still hold possession of the homestead, and defend her possession, even as against the holder of that certificate, in whosesoever hands the ■ same may be, and this is the utmost extent of her rights in the premises.

We therefore think the circuit court erred in overruling the demurrer to the complaint. The order overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.