Brown v. Benjamin

Metcalf, J.

It is the opinion of the court that it was prematurely ruled, at the trial, that the plaintiff “ had not such a title in the property conveyed to his wife as to entitle him to maintain an action for any alleged trespass thereon.” This ruling was made on the single ground that the occupation, by the husband, of real estate conveyed to his wife for her sole and separate use, must be considered as her occupation, and that his possession is possession as her bailiff, servant or agent. But, assuming that his possession merely as her bailiff", servant or agent, would not entitle him to maintain this action, yet it is our opinion that it was not a necessary legal inference from the only evidence on which the ruling was made, that he was in possession merely as her bailiff, &c. The plaintiff had testified that he was in the occupation of the locus in quo at the time of the alleged trespass upon it, and did not attempt to show any title thereto, besides that of actual possession. But the defendant did not cross-examine the plaintiff concerning the nature of his possession, nor was any evidence given of its nature, besides the conveyance to the wife’s sole and separate use; and there are ways in which he may have had rightful possession in his *199sole personal right. He may have been assignee of his wife’s lessee; or he may have received possession directly from her. As to a wife’s separate property, she is regarded, in England, as a feme sole, and may transfer to her husband the same interest in it, if done freely, that she can to any other person. The possession, rents and profits of her separate real estate, she may undoubtedly give to him. 1 White & Tudor’s Lead. Cas. in Eq. (3d Amer. ed.) 509. Jeremy on Eq. 208. Clancy on Husb. & Wife, 347 8f seq. Bell on Husb. & Wife, 498. Reeve’s Dom. Rel. (1st ed.) 165.

As no inquiry yras made of the plaintiff, as there might have been, respecting the nature of his possession, and as there was no evidence that the defendant was not a mere stranger and wrongdoer, we cannot sustain the ruling that the evidence showed that the plaintiff could not maintain this action. For it is settled law, that actual possession of real estate is sufficient to enable the party in possession to maintain trespass quare clausum fregit against a stranger, and every one must be •deemed a stranger, who cannot show any title or elder possession. By Shaw, C. J. 14 Pick. 301.

On a new trial, which is to be granted, it may be shown whether the plaintiff’s possession was such as entitled him to maintain this action, and, if it was, whether the defendant can maintain a defence on the merits of the case.

Exceptions sustained.