The opinion of the court was delivered, by
Ross, J.The defendant, as a deputy sheriff on a proper process, regularly attached and sold the property sued for as the property of the plaintiff. The plaintiff now seeks, and by the County Court was allowed, to recover for the property in his own name, on the ground that the property was the sole and separate property of his wife. Under the decisions and law of this State, which are so fully, carefully, and clearly collated, stated, and reviewed in the brief of the defendant’s counsel, that they need not be further referred to, we think this was error. The common-law doctrine, that the personal chattels of the wife on marriage vest in the husband, does not apply to such property. The legal status of the sole and separate property of the wife, is, that the wife holds it to her own use, free' from the rights which the husband by the marriage otherwise would have to it. It is because this property was thus held by the wife, that defendant is unable to attach and hold it as the property of the husband. The common law allowed the husband to recover for the personal chattels of the wife, because by that law they were by virtue of the marriage his property, subject to his sole use, care, and control, and liable to be appropriated in satisfaction of his debts. Doubtless, modern civilization and law have departed somewhat from the common law, in allowing the husband by post nuptial agreement with the wife, or by acquiescence even, to renounce the right which the common law by the marriage conferred upon him, and allow the wife to hold such property to her sole and separate use. We are not aware, however, that any common law decisions can be found, that hold that a husband can recover in his own name for personal property owned and held by the wife to her sole and separate use. Under the practice that prevailed *445under the common law, that question could not well arise. By that law the practice was to vest the title to property, so held, in a trustee. The marriage gave the husband no power or control over such property. Modern law, and our own statute law, as well as decisions, allow the wife herself to hold the title to property thus held by her. It is repugnant to all the principles of the common law even, to allow a plaintiff in his individual capacity the right to recover against a defendant for property which the defendant lawfully took and held against him in that individual capacity and right.
Generally, at common law, suits in regard to the sole and separate property of the wife were brought in the courts of equity; and the wife joined as co-orator, because interested in the property; and because in that court, such property could be protected against the unlawful encroachments of the husband even. But this court has held that the husband and wife may recover in their joint names, for the benefit of the -wife, for such property. If the husband by reason of such recovery, attempted to deprive her of the property she had only to apply to a court of equity for protection against him, until the passage of the recent statute which enables her to sue him at law. The principles of the common law, even when applied to the legal status of such property, with the title vested in the wife, require that the wife in whom the legal title is, and for whose benefit the recovery is had, shall be a party to a suit for its recovery. She is the real party plaintiff to the suit. He is the nominal party; and only a necessary party, because by the coverture she is under his legal protection and guardianship, as it were.
Inasmuch as by the declaration the plaintiff only seeks to recover in the right of the wife, and that discloses no right of Recovery in him, it was the duty of the County Court to have rendered judgment for the defendant upon the defendant’s motion, notwithstanding the verdict. It is the *446duty of this court to render such a judgment, as the County Court should have rendered on the verdict and motion. The judgment of the County Court is reversed, and judgment rendered for the defendant to recover his costs.