14

less than all is permitted, and they may sue regarding subjectmatter affecting the common estate.15 Actions of ejectment must be prosecuted in the name of the real party in interest,16 and the person having the legal title to the land, and not the one having the equitable title, is such party." And to entitle him to sue he must be out of possession.18

In California, the heir may maintain ejectment when there is no administration.19 The rule that each of several heirs may sue in ejectment for payment of rent without joining the others, applies to the case of tenants in common of an incorporeal hereditament of rents charged in fee, and no reversion; the rents are apportioned in either case. 20 Husband and wife may sue jointly. as tenants in common of community property.21 But in case of a homestead declared upon the separate property of the wife, it is not necessary to have the husband join in the action.22 The grantee may bring an action to recover lands conveyed while in adverse possession, in the name of the grantor.23 Lessees in the actual possession of land from which they are ousted by an intruder, without title or color of right, may maintain ejectment.24 And it may be maintained by the vendor of land against a vendee in possession under a contract of purchase, who refuses to comply with the terms and conditions. of the contract.25 A deed conveying title to the members of a firm enables one partner to maintain ejectment against an intruder.26

§ 25. For injuries to the person.-Injuries to the person, although inflicted by the same act and by the same defendants,

14 Wag. Stat. 558, § 3; Cal. Code Civ. Proc., § 381; Comp. Laws Nev. 1873, § 1077; Morenhaut v. Wilson, 52 Cal. 269.

15 Kimball v. Tripp, 136 Cal. 631, 69 Pac. 428.

16 Ritchie v. Dorland, 6 Cal. 33.

17 Emeric v. Penniman, 26 Cal. 122; O'Connell v. Dougherty, 32 Cal. 462; Green v. Jordan, 83 Ala. 220, 3 Am. St. Rep. 711, 3 South. 513

18 Taylor v. Crane, 15 How. Pr. 358. 19 Updegraff v. Trask, 18 Cal. 458; Estate of Woodworth, 31 Cal. 604; Soto v. Kroder, 19 Cal. 87.

20 Cruger v. McClaughry, 51 Barb. 642.

21 Wagoner v. Silva, 139 Cal. 559, 73 Pac. 433.

22 Prey v. Stanley, 110 Cal. 423, 42 Pac. 908.

23 Lowber v. Kelly, 9 Bosw. 494. 24 Kirsch v. Brigard, 63 Cal. 319.

25 Hicks v. Lovell, 64 Cal. 14; 49 Am. Rep, 679, 27 Pac. 942; Moyer v. Garrett, 96 Pa. St. 376; Wallace v. Maples, 79 Cal. 433, 21 Pac. 860; Coates v. Cleaves, 92 Cal. 427, 28 Pac. 580; Connolly v. Hingley, 82 Cal. 642, 23 Pac. 273.

28 Smith v. Smith, 80 Cal. 323, 21 Pac. 4, 22 Pac. 186; Miller v. Kern Co., 137 Cal. 516, 70 Pac. 549.

generally are several, and each person injured should sue alone. This rule is not universal, as the wrongful act may injure two or more persons in their joint relation, in which case they may join. Thus in action for libel or slander against a partnership the partners may join.27

§ 26. Trustees. The statute providing that a trustee, though not the real party in interest, may sue in his own name, is permissive and not at all compulsory.28 And the owner of premises may bring suit in his own name on a contractor's bond, to recover payment for materials, on part of the parties furnishing such materials.29

99 30

§ 27. Injuries to married woman. At common law, for injuries to a married woman, the right of action was in the husband, although in certain cases the wife must join. As stated by Chitty, the rule was substantially this: "If the cause of action survive to the wife, she must be joined as plaintiff; as where the injury was before marriage; or, if it was inflicted after marriage, and it be of such a nature as to bring personal suffering to the wife, or if it injures her personally; as a battery, false imprisonment, or slander by words actionable per se.' And the same rule prevailed in regard to injuries to the wife's property. If the cause of action survived to her, she should join, otherwise not.31 The code has made sweeping changes in regard to the common-law rules concerning the joinder of husband and wife. In California, the code. provides that "when a married woman is a party, her husband must be joined with her, except-1. When the action concerns her separate property, or her right or claim to the homestead property, she may sue alone; the wife may sue in her own name to recover the homestead, without joining her husband,32 but the complaint must show that a valid declaration of home

stead covers the land;33 2. When the action is between herself and her husband she may sue or be sued alone; 3. When she is living separate and apart from her husband, by reason of his desertion of her, or by agreement in writing entered into between them, she may sue or be sued alone. Similar statutes have been passed in all the code states. Such statutes differ somewhat in their details, but their general results are substantially the same.35 In Iowa, a married woman may in all cases sue and be sued, without joining her husband with her, to the same extent as if she were unmarried, and an attachment or judgment shall be enforced by or against her as if she were a single woman.36 Section 30 of the Oregon code is the same as section 370 of the California code, except that the third subdivision is omitted, and the clause "and in no case need she prosecute or defend by a guardian or next friend," is added. The Ohio code (§ 28) is as follows: "Where a married woman is a party, her husband must be joined with her, except that where the action concerns her separate property, or is between herself and husband, she may sue or be sued alone; and in every such case her separate property shall be liable for any judgment rendered therein against her to the same extent as would the property of her husband were the judgment rendered against him; but in no case shall she be required to prosecute or defend by her next friend." Formerly section 114 of the New York code was the same as the above section of the Ohio code, omitting the clause in regard to the liability of her separate property; but the new code, passed June 2, 1876, has the following provision (§ 450): "In an action or special proceeding, a married woman appears, prosecutes, or defends, alone or joined with other parties, as if she was single." Minnesota, Kansas, and Nebraska have provisions similar to those of New York and Iowa. In construing these provisions of the code, it has been held that in actions. for injuries to the wife's person or character, she must join with her husband;37 and this joinder of the husband as party

33 Tappendorff v. Moranda, 134 Cal. 419, 66 Pac. 491.

34 Cal. Code Civ. Proc., § 370; Muller v. Hale, 138 Cal. 163, 71 Pac. 81.

35 Comp. Laws Nev., § 1070; Rev. Codes Idaho, § 7.

36 Code of Iowa, § 2562.

37 Pomeroy's Remedies, § 237. And see McFadden v. Santa Ana etc. Ry.

Co., 87 Cal. 465, 25 Pac. 681, 11 L. R. A. 252; Tell v. Gibson, 66 Cal. 247, 5 Pac. 223; Neale v. Depot Ry. Co., 94 Cal. 425, 29 Pac. 954; Lamb v. Harbaugh, 105 Cal. 680, 39 Pac. 56; Hawkins v. Front Ry. Co., 3 Wash. 592; 28 Am. St. Rep. 72, 28 Pac. 1021, 16 L. R. A. 808.

plaintiff may be made during the progress of the trial, with permission of the court;38 while, for injuries to her separate estate, whether the same arise from deceit, trespass, or conversion, she may sue alone, or her husband may be joined with her, as the provision authorizing her to sue alone has generally been held permissive, except in those states which absolutely require the action to be prosecuted by the wife alone." But in case of foreclosure of mortgage upon personal property of the wife the husband must be made a party defendant.* So, also, if the cause of action arises from contract the wife may sue alone, if it concerns her separate estate, or her husband may join with her in such action.

40

There is no statutory limitation as to the kind of actions that may be maintained by the wife when they concern her separate property, or are against her husband. Thus, a married woman may sue alone on a promissory note forming a part of her separate estate," although such note was given to her by her husband before marriage, and he is the party sought to be held liable in the action.42 Nor is it necessary, under this section, for the wife to sue by a prochein ami. In New York, a married woman, it seems, cannot sue her husband for assault and battery," nor for libel or slander; nor in eject

38 Davis v. City of Seattle, 37 Wash. 223, 79 Pac. 784.

39 Palmer v. Davis, 28 N. Y., 242; Newbery v. Garland, 31 Earb. 121; Ackley v. Tarbox, 31 N. Y. 564; Van Maren v. Johnson, 15 Cal. 308; Kays v. Phelan, 19 Cal. 128; Calderwood v. Pyser, 31 Cal. 333; Corcoran v. Doll, 32 Cal. 90; Spargur v. Heard, 90 Cal. 221, 27 Pac. 198. In Calderwood v. Pyser, supra, it was held, "that an action which concerned the separate property of the wife, and in which the husband and wife joined, did not abate in consequence of a divorce; the parties survived the divorce, and the cause of action survived. The husband was joined, not because he owned the property, but because of his relation to the other plaintiff. His relation ceased by the divorce, but the right of action continued in the wife, where it was before. But supposing the interest in the action terminated

45

43

40 Henley v. Wilson, 137 Cal. 273, 92 Am. St. Rep. 160, 70 Pac. 21, 58 L. R. A. 941.

41 Corcoran v. Doll, 32 Cal. 82; Smart v. Comstock, 24 Barb. 411. 42 Wilson v. Wilson, 36 Cal. 447; 95 Am. Dec. 194.

43 Kashaw v. Kashaw, 3 Cal. 312. 44 Longendyke v. Longendyke, 44 Barb. 366.

45 Freethy v. Freethy, 42 Barb. 641.

49

ment. But she may sue him for alimony, without bringing an action for divorce." In California, the possession of either of the spouses as to the community property is the possession of the other, and neither can sue the other for the conversion thereof.18 The provision of the section authorizing the wife to be sued alone when living separate and apart from her husband, has no application to a mere temporary absence of the wife from her husband. There must have been an abandonment on the part of the husband or wife, or a separation which was intended to be final. In some jurisdictions a married woman can maintain an action alone for an injury to her person, and the husband is not a necessary party to such action.50 A married woman may maintain an action in her own name without joining her husband to recover possession of the homestead property.51 And she may sue alone to recover money loaned by her which is her separate property.52 So, if a wife deserts her husband, but before the expiration of the statutory period required to make the desertion a cause of divorce, offers in good faith to return and resume the performance of her marital duties, and he refuses to receive her, such refusal amounts to desertion on his part, and she can in California sue alone to recover damages for personal injuries.53 The husband is held to be the proper plaintiff in an action to recover the proceeds of his wife's labor, in the absence of an agreement between them making such proceeds her separate property, but he cannot sue alone to recover for injury to her person, she being a necessary party.55

46 Gould v. Gould, 29 How. Pr. 441. But it is now held she may sue her husband in ejectment to recover the possession of her separate real estate. Wood v. Wood, 83 N. Y. 575; also, Crater v. Crater, 118 Ind. 521, 10 Am. St. Rep. 161, 21 N. E. 290; Gibson v. Herriott, 55 Ark. 85, 96, 29 Am. St. Rep. 17, 17 S. W. 589.

47 Galland v. Galland, 38 Cal. 265. 48 Schuler v. Savings etc. Soc., 64 Cal. 397, 1 Pac. 479.

49 Tobin v. Galvin, 49 Cal. 36; Humphrey v. Pope, 122 Cal. 253, 54 Pac.

817.

50 Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553; City of Portland v. Taylor, 125 Ind. 522,

54

25 N. E. 459; Westlake v. Westlake, 34 Ohio St. 621; 32 Am. Rep. 397. So in Kansas. Mehrhoff v. Mehrhoff, 26 Fed. 13. Under the Alabama statutes (Code, § 2347), the wife must sue alone for all injuries to her person. Barker v. Anniston Ry. Co., 92 Ala. 314, 8 South. 466.

51 Mauldin v. Cox, 67 Cal. 387, 7 Pac. 804.

52 Evans v. De Lay, 81 Cal. 103, 22 Pac. 408.

53 Andrews v. Runyon, 65 Cal. 629, 4 Pac. 669.

54 Moseley v. Heney, 66 Cal. 478, 6 Pac. 134.

55 McKune v. Santa Clara V. M. & L. Co., 110 Cal. 480, 42 Pac. 980.