Marston v. Ward

Citations

• 35 Tex. 797

Syllabus

<p>1. The statute of January 20, 1840 (Paschal’s Digest, Article 4636), provides that “the husband may sue either qlone or jointly with his wife for the recovery of any effects of the wife.” In suits for the mere recovery of the separate property of a married woman, this enactment removes all question of the propriety of joining her husband and herself as plaintiffs whenever there is no conflict in their rights or interests in the subject-matter of the litigation. But when the rights or interests of the husband conflict with those of the wife, in respect of property in which she has a separate estate, then this statute is not applicable; and in such cases it is a misjoinder off plaintiffs to bring the suit in behalf of the husband and wife jointly,, and the defendants to the suit may avail themselves of such misjoinder of the plaintiffs.</p> <p>2. Suit by husband and wife against defendants for partition of real estate held in common by the wife and the defendants—the husband seeking in the same suit to establish a charge upon the property in favor of the community estate of himself and wife. The defendants demurred, assigning as cause that there was a misjoinderof plaintiffs. Held, that the demurrer should have been sustained. There being a conflict of interests between the husband and wife, the act of 1340 (Paschal’s Digest, Article 4636), authorizing suit by the husband and wife jointly, does not apply; and the conflict of their interests being: apparent on the face of the petition, the misjoinder of them as plaintiffs was available by demurrer, and the defendants were entitled to take advantage of it.</p> <p>3. Qumre. A married woman owns as her separate estate an undivided interest in improved city lots, not partitionable by metes and bounds: Is an action against her co-proprietors such a suit as is contemplated by the ninth section of the Act of January 30,1840, which authorizes a husband to sue either alone or jointly with his wife “for the recovery of any ef