Merrit v. Doss

delivered the opinion of the court.

William C. Doss and wife, brought this suit in the Circuit Court of Warren county, to recover certain lots and parcels of land, situated in the city of Vicksburg, in the possession of the defendants below.

The complaint avers that the land is the property of the wife, and that, she is entitled to the possession of the same.

Before proceeding with the trial, on the merits, in the court *288below, the defendants moved for a rule on the plaintiff’s counsel, to produce his authority for commencing and prosecuting the suit. The motion was supported by an affidavit of the agent of the defendants, setting forth that Doss was, and had been for many years, a non-resident of the State, residing at one time in the State of Texas, and was then in the State of California; that affiant believed the suit had been instituted, and was prosecuted without the knowledge, cpnsent, or authority of Doss.. “ That the defendants were then in the possession of the land in controversy, and had been in possession of the same, by and with the consent of Doss, for more than seven years before the institution of the suit, claiming title to the same in their own right, and as of their own property, by and with the knowledge and consent of said William C. Doss, before any right accrued to his wife.” The, court, upon this showing, refused to grant the rule on counsel; and this is assigned as the first error in the record.

It is said, by the counsel for the plaintiffs in error, that Doss, being entitled during the coverture, to the possession, rents and profits of his wife’s lands, was the substantial party to the suit, 'and that his consent to its institution was therefore necessary.

The testimony introduced on the trial may sustain counsel in this position; but on the trial of the motion, the court could only act upon the case as it was presented, and not with reference to testimony which had not then been introduced.

The complaint avers that the land belongs to the wife, and that she is entitled to the possession of the same. The wife, according to the complaint, having the entire interest in the subject-matter of the suit, was of course the substantial party thereto. The party having the substantial right, must be regarded as the substantial party to the controversy. The relation existing between husband and wife, would justify the latter in using the name of her husband, especially when he is shown to be absent from the State, in any suit or controversy, to which the law required him to be a party for the recovery of her separate property; and his consent in such case would be presumed, until his dissent was clearly shown.

Where the wife has a right of action, and the husband is a necessary party to the suit, the law presumes that he has con*289sented to the use of his name, upon the principle that every man is presumed to perform those duties which pertain to the marriage relation; among which may be included that which requires the husband to do whatever is necessary for the protection of his wife’s estate, or to place her in the full enjoyment of the same. The question, in such case, is not one of previous consent, or authority by him to institute the suit, but of subsequent dissent, upon being informed of what had been done; and even then a question might arise, whether the suit would be dismissed, if he were fully indemnified against the payment of the costs. We are, therefore, of opinion, that the court below committed no error on .this point.

The next question arises upon the Statute of Limitations. The land in controversy was sold under an execution against Doss, in 1842, and purchased by Mrs. Doss — who received a regular deed of conveyance from the sheriff for the same. The defendants below, in 1837, conveyed the land to Doss. Without noticing specially the various instructions given and refused by the court below, it will be sufficient to state, in general terms, the point pre•sented. The defendants went into possession of the land in 1841; claiming it, in the language of the testimony, as their own, and have ever since continued to hold and use it as their own property. They, however, show no written evidence of title. It is said that the statute having commenced running in 1841, against Doss, that it still continued to run against his wife, after her purchase in 1842; upon the principle, that when the statute once commenced running it continued to run, notwithstanding the wife’s disability to sue. However true this may be as a general rule, it is not true in this case, for the reason that the statute of 1844, has, in express terms, provided otherwise; 1st and 2d sections of Act 1844, Hutch. Code, 829. But it is said that Mrs. Doss’s title having accrued prior to the Act of 1846, in regard to the rights of married women, Doss would be entitled to the possession of the land; and that the statute would run against such right, as he labored under no disability to sue. The husband’s right of possession, or to the rents and profits of the land, is but an incident to the title of the wife. He is not solely seised of the land, but is jointly seised with his wife. In the technical language of the books, “the *290husband and wife are jointly seised in right of the wife.” Clancy, Husband and "Wife, 161.

The statute not running, therefore, as to the principal — the wife’s title, — would not run as to the incident — the possession— which might vest in the husband after the recovery of the land.

Judgment affirmed.