McKendry v. McKendry

Opinion,

Mr. Chief Justice Paxson:

The first specification of error presents the question whether the plaintiff can maintain this action against the defendants, one of whom is her husband. It was an action of ejectment brought in the court below to recover the possession of certain real estate, admittedly the separate property of the wife. It is clear she could not sustain such suit at common law. Can she do so by force of any act of assembly? We throw out of the case the act approved June 3,1887, P. L. 332, relating to husband and wife, for the reason that this suit was commenced before its passage. The rights of the parties must be measured by the law as it stood on the day when the writ issued.

Without going into tedious detail in regard to the- legislation affecting the property rights of married women, the sixth section of the act of April 11,1848, P. L. 536, secures to them the full use and enjoyment of their property of every description, whether real, personal, or mixed, as fully after marriage as before. It is not liable for her husband’s debts, nor can he mortgage or encumber it. There are various other provisions in subsequent acts of assembly relating to the separate earnings of the wife, her right to be declared a feme sole trader, etc., which it is not necessary to refer to in detail. Then comes the act of April 11, 1856, P. L. 315, the third section of which provides that, “ Whensoever any husband shall have deserted or separated himself from his wife, or neglected or refused to support her, or she shall have been divorced from his bed and board, it shall be lawful for her to protect her reputation by an action for slander or libel; and she shall also have the right, by action, to recover her separate earnings or property: provided that, if her husband be the defendant, the action shall be in the name of a next friend.” The plaintiff contends that her suit can be sustained under this last act.

The act of 1848, which secures to a married woman the use and enjoyment of her separate estate, contains no provision by which her rights thereto can be enforced against her husband. It may very well be that a common law action could not be maintained against him for that purpose. The act having given the right, there must be a remedy to enforce it; otherwise it wmuld fail of its purpose, in part, 'at least. If a husband were to deprive his wife of the use and enjoyment of her separate estate, it would be an act contrary to law, and prejudicial to her interests, and we have no doubt a court of equity could interfere to restrain such action. Many nice questions may arise as to what would constitute an interference by the husband with the separate property of the wife. If they are living together on her property, her right to pject him therefrom arbitrarily may well be questioned. The home of the husband is the home of the wife, and the home .of the wife must necessarily be the home of the husband, if he chooses to avail himself of it; otherwise all unity of person between them would be destroyed, which we do not think was intended by the act of 1848. But if the husband desert his wife, we do not think he can take possession of her real estate and hold it as against herself or her tenants. Upon the trial of the cause below, the learned judge submitted to the jury the question whether this husband and wife took possession of the property in dispute under an agreement or arrangement between them that they were to make it their home, and instructed them that, if the possession was taken in pursuance of such an arrangement, the plaintiff could not recover. This clearly appears from that portion of the charge embraced in the third specification. “It is a question,” said the learned judge, “you will consider, whether that possession was in pursuance of this arrangement made with his wife, or whether it was inconsistent with that arrangement. If it was in pursuance of that arrangement, she would not be entitled to recover; but if it was inconsistent with that arrangement, and it is for you to say whether or not the bringing of a family into a three-roomed house is inconsistent with his possession in pursuance of that arrangement, she would be entitled to recover. He must not only have taken possession, but he must retain it in pursuance of that agreement.” We fail to discover error in this instruction. The whole matter of the unhappy difficulties between these parties, and the facts which led up to the occupation of the premises, were before the jury, and they have found that the possession of the husband was inconsistent with the alleged agreement. With this fact found against them, the only point left the defendants is the question whether the action of ejectment can be maintained.

As before intimated, we think a bill in equity would lie against the husband, at the suit of the wife, to protect her in the enjoyment of her separate estate, independently of the act of 1856. As before observed, it is an act contrary to law, and prejudicial to the interests of the wife, for a husband to deprive her of the possession and enjoyment of her separate estate, and, as there is no remedy at law provided for such case, we have no doubt that the jurisdiction of equity would attach under the act of 1836, conferring equity powers upon the courts. The action of ejectment is often a substitute for a bill in equity, and we have in our practice what is known as an equitable ejectment. It is used constantly to enforce specific performance of contracts for the sale of real estate, and in some other instances. It is a convenient and plastic remedy, and more speedy than a bill in equity. The learned judge below treated this suit throughout as an equitable ejectment, and, while it is not so technically, we see no objection to regarding it as substantially such a proceeding. If it were necessary to frame a new writ to meet the exigencies of this case, we have ample power to do so, under the third section of the act of June 16, 1836, P. L. 785. It is not needed that we should frame a new writ, where we have one already in existence which will accomplish all that is needed. Regarding this action as a substitute for a bill in equity, we are of opinion that it can be sustained.

There is no merit in the fifth and sixth specifications. The record referred to was properly excluded. The plaintiff was not a party to that proceeding, and it cannot be given in evidence to affect her.

Judgment affirmed.