FROM BELKNAP CIRCUIT COURT. In Archbold's Pleading and Evidence, page 63, it is said, — "Real actions must be brought against husband and wife, when the husband is seized in right of his wife; or, when he is seized jointly with his wife by purchase before or after marriage; or, where he holds in coparcenary with his wife, without partition made before marriage; or, where the land descended to them in parcenary after marriage."
On principle, as the husband and wife must at common law be joined in actions for the independent torts of the wife, and as the husband and wife may together be guilty of torts in which the wife, as matter of fact, does not act under the control of her husband, the court cannot say, looking at this writ and declaration, that this is one of those cases where the husband and wife cannot be joined. For this reason, as the declaration sets out and the demurrer admits a joint disseizin, the court cannot see, as matter of law, that this may not be; and the demurrer, so far as this objection goes, must be overruled.
One parcel of land is described as "lot No. 4 in said 5th range, excepting six acres and a passage-way thereto out of the same, and the lot fenced off for a school-house, where the school-house now stands." Admitting that this might be a good description in a conveyance, and that the grantee might elect and measure off his six acres at his pleasure, yet it seems clear that a writ of entry could not be maintained to recover possession of the land until it had been distinctly and definitely defined. Jackson, Real Actions 13; Flagg v. Bean, 25 N.H. 49. The description of this lot is insufficient, and the plaintiff must amend his declaration before he can have judgment; and the same is true of the lot described as "part of lot No. 5 in the 5th range."
The case shows that the object of the proceeding is to foreclose a mortgage on which the wife has released her dower and homestead; and I infer from the brief that the wife has been joined with a view to the foreclosure of her rights of dower and homestead. The wife might plead in such way as to raise the question whether she is rightly made defendant. The ordinary rule being, that a writ of entry cannot be maintained excepting against a party claiming either a fee or a freehold, the wife, if she have no claim excepting her inchoate right of dower and homestead, may undoubtedly defeat the action against herself if she desires to do so, leaving it to be settled, whenever the question properly arises, whether the foreclosure of the right of dower and homestead can be made complete during the husband's life.
LADD and SMITH, JJ., concurred.
Demurrer overruled. *Page 341