Rawlins v. Rounds
Rawlins v. Rounds
Opinion of the Court
The opinion of the court was delivered by
This is a demurrer to the plaintiff’s declaration. * The declaration is in tresspass for personal property. There seems to be no sufficient allegation of either title or possession in the plaintiffs, at the time of the injury. All that is alleged is that the property was that of the wife, which is equivalent to saying it was the husband’s, and as property draws after it possess
In order to render it proper for the wife to join in this action, we must presume this property was the wife’s, and taken from her before marriage, nothing of which appears in the declaration. For if the wife earned the property after marriage, and so was in some sense the meritorious cause of -action, as the books term it, this will not enable her to have a separate property in things personal, reduced to possession; but both the property and the possession become that of the husband. And a marriage settlement, to enable the wife to hold separate personal property in possession, could only be created by the intervention of trustees, and the legal possession would be in them, for -her benefit, so that it seems to us altogether impossible to get over this first difficulty, which seems fatal on general demurrer. The case of Gay and wife v. Estate of Rogers, 18 Vt. 342, referred to by the plaintiff’s counsel, only goes to recognize the right of the wife to join with the husband in cases of express promise to the wife, when her property or services are the consideration for the promise, and does hold that she cannot, even in such cases, join in an action upon an implied promise, or book account.
Judgment that declaration is insufficient.
Reference
- Full Case Name
- Jonathan Rawlins and Wife v. Elisha Rounds and Orville Rounds
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Tlie wife’s personal property in possession vests absolutely in the husband, upon marriage; and in an action for an injury done to it subsequently, she should not join j if she do, it is good ground of demurrer, motion in arrest, or even of error. And both the property and possession of that earned by the wife, after the marriage, become that of the husband ; and for any injury to it he must sue alone. Tn this case the husband and wife joined in an action of trespass, and in their declaration averred the property to be that of the wife, without any averments as to the time of the trespass in reference to their marriage. Held, that there was not a sufficient allegation of either title or possession in the plaintiffs, and that, from the declaration, the court could not presume that the property was the wife’s, and taken from her before her marriage.