The bare statement of the case will be all that is necessary to dispose of it. The defendant, a sheriff, held an execution against one Edward Farnham, and sold the real estate of Joel B. Farnham's wife. It is not alleged that Edward was even in possession, or that he claimed any interest in the property, but it is simply stated that he was the medium though whom the title was passed from Joel B. to his wife. This is the only ground upon which it is claimed that the proceedings of the sheriff will constitute a cloud upon her title. But it is too plain for argument that the proceedings of the sheriff, even if he executes a conveyance to the purchasers, would not, standing alone, give any color to an action against Mrs. Farnham to recover the premises.
But, as a further protection to Mrs. Farnham, the complaint alleges that the judgment upon which the execution issued has been reversed. I suppose the records will show this fact, and it takes away all pretense of title through the sheriff's deed.
There might be something in the suggestions of the plaintiffs' counsel, if the judgment debtor was in possession of the property; but without such possession, the sheriff's deed would be absolutely void as against the owners in possession of the property. Nor is there any way by which a subsequent purchaser could prove himself to be a bonâ fide purchaser as against Mrs. Farnham or her grantees in possession. Her possession is sufficient notice of her title without putting her deed on record. But the court will hardly entertain a suit to remove a cloud from her title, when she could remove it herself by putting the deed on record.
The defendants' counsel makes another point against the complaint, which it is, perhaps, unnecessary to consider. If *Page 484 the case of Mann and Wife v. Marsh (21 How., 372) is correctly decided, the complaint is substantially defective for uniting husband and wife as plaintiffs in the action which concerns her separate property. That case held that the complaint did not state a sufficient cause of action in the plaintiff, the husband and wife being regarded in law as but one person, and, therefore, not within the rule allowing the name of the husband to be dropped out of the complaint as in case of other parties. But it is not necessary to rely upon this ground of demurrer in the case at bar to sustain the judgment, and I shall not, therefore, attempt to discuss it.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 485