Weston v. Weston , 46 Wis. 130 ( 1879 )

Lvoir, J.

While it may be true that the statute does not mate the wife a joint tenant with her husband of the homestead, or vest in her an interest in the fee, yet it does confer upon her valuable rights therein. It gives her the right of occupancy and enjoyment thereof with her husband as against his creditors, and an absolute veto on his power to alienate it. In case the husband dies intestate, the homestead descends to his widow, absolutely if he leaves no children surviving him, and during her widowhood if he does. Tay. Stats., 1171, § 5. These are additional to her dower right, which manifestly is not merged in the homestead right. Should .the husband lawfully devise the homestead to another, or should he die leaving' children, and his widow marry, she may assert her dower right, notwithstanding the premises were once the homestead of her husband.

In Madigan v. Walsh, 22 Wis., 501, this court found no difficulty in holding that an inchoate right of dower is such an interest in lands as will enable a married woman to maintain an action to set aside a deed thereof to which her signature has been fraudulently obtained. That decision, we think, disposes of the objection that Mrs. Weston has no such interest in the premises affected by the lien judgment as gives her a standing in court to resist such judgment. In addition to her rights under the homestead laws, and her inchoate right of dower, she alleges that she is entitled to the possession of the premises pursuant to an interlocutory order of the court in the divorce suit. We infer that she is in possession by virtue of the order, and that such possession is exclusive of her husband. Having these various interests and rights in the premises, it would be a reproach to the law were she denied a standing in court to defend them when they are fraudulently and collusively assailed by her husband and his kindred. We hold, therefore, that Mrs. Weston is a proper party to the lien suit.

If not made á party, probably she might maintain an action against the plaintiffs in the nature of a suit to redeem, in which she could contest the right of the plaintiffs to a specific lien •for any sum, or show that the judgment is fór too large a sum. McCoy v. Quick, 30 Wis., 521. The learned counsel for the plaintiffs claim that the judgment should not be opened to allow Mrs. Weston to defend the action, if she is not bound by the judgment; and they cite in support of their position, Bean v. Fisher, 14 Wis., 57, and Gray v. Gates, 37 id., 614. Bean v. Fisher merely holds that a judgment should not be opened to let in a new party whose interests are not affected by it; as, for example, a prior incumbrancer in an action to foreclose a junior mortgage. The same rule was stated hypothetically in Gray v. Gates, but the case turned upon a special statute of limitations relative to opening-judgments.

"We think the interests of Mrs. Weston may he affected by this judgment, if it is allowed to stand. On a sale under it she is liable to be excluded from the possession of the premises — at least she may be so excluded unless she bring an action promptly, and obtain an injunction to protect her possession. This -would or might require the giving of security, which she cannot be required to give if allowed to defend the lien suit. Moreover, in an action thus brought by her, very important questions might arise as to how far alien judgment against the husband alone hinds or affects the wife. Such questions cannot arise in the lien suit, if the wife he permitted to defend it. One writer says, by way of illustration, that a decree which drives a party to a separate litigation of a matter which might have been settled by the decree had' such party been before the court, works an injury to him. Thompson on Homestead and Exemptions, § 695. This, however, may conflict somewhat with Bean v. Fisher.

Read v. Sang, 21 Wis., 678, is relied upon, as authority for the position that Mrs. Weston is not a proper party to the lien suit. It was there held, that, in an action to cancel the conveyance of a homestead executed by husband and wife, and which was obtained by the fraud of the grantee, the husband alone must sue, and that it was error to join the wife as plaintiff in the action. The court entirely overlooked the consideration that the wife had an inchoate right of dower in the premises, which fact alone was sufficient to maintain her standing in court, according to Madigan v. Walsh, supra. The two cases are scarcely reconcilable. If both are to' stand, the wife is better off in respect to land of her husband not a homestead, than she is in respect to the homestead. This result could not have been intended by the legislature in the enactment of the homestead laws. Otherwise, the same law which gives the wife valuable beneficial interests or rights in the homestead of her husband, including the power to prevent its alienation, not only left her without the means of protecting those rights, but actually shuts the courts against her when she seeks protection to her inchoate dower right in the homestead.

But it is not necessary to overrule Read v. Sang in order to hold that Mrs. Weston may be let in to defend the lien suit. She shows a right to the exclusive possession of the premises, a feature wanting in that case. She also asserts that her husband is fraudulently colluding with the plaintiffs to effect an alienation of the homestead without her consent, through the processes of the lien suit, when he owes them little or nothing— thus fraudulently attempting to do by indirection that which the law will not permit him to do directly. There was no such condition of things in Read v. Sang, but husband and wife were acting together in entire accord, in an endeavor to recover their homestead, of which they had been defrauded, and the rights of the wife were as well protected in the action by the husband alone as they would have been Rad she been allowed to remain a plaintiff upon the record. These differences are vital, and thej take this case out of the rule of Read v. Sang.

There are some adjudications in other states which sustain Read v. Sang, but the great weight of authority seems to be the other way. It is not thought necessary to comment upon, or even to cite, the cases on the subject. Reference to many of them will be found in Mr. Thompson’s treatise, before mentioned, in the notes to §§ 690 to 698 inclusive; and in Mr. Smyth’s treatise on the same subjects, in notes to § 72.

Objection is made that irregularities of practice were committed, in that Mrs. Weston was made a party to the lien suit without being required to present a verified answer or pay costs as a condition to such relief. ¥e do not understand that correct practice requires that terms should be imposed in such cases. Mrs. Weston is not in default, and the conditions upon which relief is granted to parties in default, should not be imposed upon her. We are not aware of any statute or rule of practice which requires that any such burden must be laid upon her. Certainly the statute concerning the bringing in of new parties does not. R. S. 1858, ch. 122, sec. 22.

Under all of the circumstances of the case, our conclusion is that Mrs. Weston shows such an interest in the premises affected by the judgment in the lien suit, as entitles her to defend that suit; that the judgment was properly opened to enable her to do so; and that the practice in that behalf has been regular.

By the Court. — Order affirmed.