ed as a bill for a specific performance of the contract. A single reason for this statement is sufficient. The land that is the subject of the contract is situate in the state of West Virginia, and a bill for specific performance could affect only that particular property. The scope of the present bill, as set forth in the record, is to subject other property of Gortner, situate in the state of Maryland, to a sale for the payment of what is claimed to be due from him to the appellants. To change the scope of the bill so as to make it one for specific performance would be to permit them to substitute an entirely new bill, in which the parties defendant are nonresidents, and the property to be affected is situate out of the state. The bill in the present record makes out a case in which, inasmuch as the land to be affected lies in the state, though the defendants are nonresidents, the court could acquire jurisdiction by an order of publication under section 105 of article 16 of the Code. They are now in court only by virtue of the order of publication, and this informed them that the only purpose of the bill was to obtain a decree for the sale of the land situate in Maryland. "They cannot be considered as in court, and parties to the suit, for any other or different purpose, or for any purpose not necessarily arising out of the object of the bill as stated in the order of publication." Fox v. Reynolds, 50 Md. 572. The remanding of the case, with liberty to the appellants to convert the bill into one for specific performance against the heirs of Gortner, all of whom reside out of the state, could, therefore, accomplish no good purpose. After the amendment the defendant would not be in court for the purposes of the new bill, and there would be no process by which they could be brought in. The object of the order of publication affecting an absent nonresident is to notify and warn him to appear and defend his rights, and "is simply a statutory mode of conferring upon the court power to pass judgment on property, the subject-matter of suit within its jurisdiction, when the owner is beyond the reach of its process." Dorsey v. Dorsey, 30 Md. 534, 96 Am. Dec. 633. The proposition of the appellants, therefore, implies that nonresident defendants who have been brought into a case by order of publication are to be regarded as in court to answer another and entirely different proceeding, in which, without the appearance of the defendants, the court has no jurisdiction. This, we think, is not within the authority of statute or reason. To so decide would have the effect of deceiving the defendants who appeared and answered for the special purposes of the suit mentioned in the order of publication, and would require the court to make decrees it could not enforce. In fact, the absence of that power is a good test by which to try the jurisdiction of the court. A decree requiring the conveyance of West Virginia property by

ly constructively, before the court, would be nugatory. "Chancery can have no jurisdiction where it can give no relief." White v. White, 7 Gill & J. 210.

It follows from what has been said that the decree must be affirmed. Decree affirmed; the appellants to pay the costs.

(64 N. J. E. 624) BRISTOL et al. v. SKERRY et al. (Court of Chancery of New Jersey. Feb. 16, 1903.)

MARRIED WOMAN-RIGHT OF ACTION-PARTIES-INTEREST OF HUSBAND.

1. Since the passage of section 11 of the married woman's act (2 Gen. St. p. 2014, § 11), a wife may bring a suit for the protection of her property in her own name, without joining her husband as a party to the suit. This statute enables the wife to sue as a feme sole, but does not require her to do so. If she desires to make her husband a party to the suit, she must follow the mode of procedure observed before the adoption of section 11, and sue by her next friend, making her husband a defendant.

2. A husband has an equity in lands to which his wife holds title, which this court will recognize. He has power, by refusing to join in her deed, to prevent her from conveying her lands; and if a child be born during the cov erture, and the husband survives the wife, he will take an estate by the curtesy (complete) in lands whereof she died seised of an estate of inheritance.

3. Having this equity, he is a proper party to a suit brought by the wife to protect her lands. It is, however, misjoinder to make him co-complainant with his wife. If he is made a party, it should be as defendant. (Syllabus by the Court.)

Bill by Anna C. Bristol and Samuel A. Bristol against Amory T. Skerry and others. Demurrer to bill sustained.

W. A. Stryker, for demurrant. Smith & Brady, for complainant.

GREY, V. C. The bill in this case is filed by Anna C. Bristol and Samuel A., her husband, alleging that Anna is the sole owner in fee simple of a farm in Hunterdon county. The bill charges that the defendants, by increasing the height of their milldam, have caused the natural flow of a river to be checked, and the waters thereof to flow back upon the lands of the complainant wife, to the continuous and permanent injury of her lands. The defendants demur to the bill because the husband, Samuel A. Bristol, is made a party complainant, when it does not appear anywhere in the bill that he has any interest in the matters in dispute. This is the sole ground upon which the demurrer was argued.

Before the passage of the married woman's act of 1852, a married woman might have been interested in lands in two different ways: She might have had the legal title to lands come to her by deed, devise, or descent. In land of which his wife became so seised of an estate of inheritance, the husband was

instantly vested of an estate by the curtesy initiate. The wife's property became liable to be taken for the payment of the husband's debts, and also to his disposition, for he could convey his wife's lands, at least, during the coverture, and in case a child was born, and the husband survived the wife, during his life. The obvious inequity of this situation led to the creation of a peculiar equitable interest for the protection of the wife from the distresses occasioned by the rigid rules of the common law. This was the other way in which a wife might, before the act of 1852, have an interest in lands. This interest originated by marriage settlement, by deed, or by devise, creating a trust for the wife's separate use, with powers enabling her to deal with the property. She was deemed to be, with respect of such property, a feme sole. Her interest in the lands so set apart for her benefit was called her "separate estate." Her action in protection of such property, or attacks upon it by others, was within the cognizance of the equity courts. Tullett v. Armstrong, 1 Beav. 21. A caustic review of the origin and growth of this separate estate of the wife, from the point of view of a common-law jurist, may be found in the opinion of Chief Justice Beasley, speaking for the Court of Errors and Appeals, in the case of Perkins v. Elliott, 23 N. J. Eq. 527.

While this was the state of the law, a husband who might have had an estate by the curtesy initiate in lands wherein his wife held title was held to be a necessary party to any bill filed respecting those lands. The mode of procedure then was that the wife, when seeking to protect her separate property, sued by her next friend; making her husband a party defendant, in order that he might contest, if he wished, her claim that the property in question was in fact her separate property, and show her claim to be incompatible with his marital rights, for she might have held the title, and the husband would then have had a curtesy. Story, Eq. Pl. sec. 63; Sigel v. Phelps, 7 Sim. 239; Wake v. Parker, 2 Keen, 59. Though Sir John Leach, in Smyth v. Myers, 3 Madd. 475, in a suit where a wife had a separate estate, and sued, naming her husband as next friend, granted a motion made by the plaintiff to strike out the name of a husband as next friend, and make him a coplaintiff, declaring that, although the wife's claim to separate property was against jus mariti, yet the husband, by joining as coplaintiff, would admit the statement in the bill that the property in question was the separate property of the wife, and that this would answer all the purpose of making him a defendant. Under the earlier cases a bill filed by husband and wife as co-complainants was held to be the suit of the husband alone, and the wife was not bound by any of the allegations in such a bill in any future litigation. See, in Johnson v. Vail (1862) 14 N. J. Eq. 426, and cases

But

there cited, an interesting discussion of the subject by Chancellor Green. In 1852 the married woman's act destroyed the commonlaw estate of tenancy by the curtesy initiate. Porch v. Fries (1867) 18 N. J. Eq. 208. as it gave the wife no power to dispose of her lands without the husband's joining in her deed, the husband's estate by the curtesy might still arise, upon her death seised of an estate of inheritance; a child having been born of the marriage. Id. 209; Naylor v. Field (1861) 29 N. J. Law, 292. Since the passage of the married woman's act of 1852, making lands, the legal title to which stands in the wife's name, free from the husband's control or debts, such property has also come to be designated the "separate estate" of the wife. Although the married woman's act of 1852 destroyed the husband's estate by the curtesy initiate in lands wherein his wife held title, he yet has control over her disposition of those lands, for she has no power to convey them unless he joins in her deed; and he still has a possibility that a child may be born of the marriage, and that he may survive his wife, and thus become seised of an estate by the curtesy complete. Since the passage of that act the husband has been declared to be a necessary party to a suit begun by a wife, through a next friend, for her separate estate. Objection was made to the nonjoinder of the busband, and it was declared to be well taken. Tunnard v. Littell (1872) 23 N. J. Eq. 269, following Johnson v. Vail, ubi supra, holding that the husband is a necessary defendant. The husband's interest even in the distinctly separate estate of the wife was in these cases held to be sufficient to make the wife's suit defective unless he was made a party defendant. In Johnson v. Vail the husband appeared as next friend of the wife, but was not joined as a party in the bill, either as complainant or defendant. The case was presented on an order to show cause why an injunction should not issue, etc. It was held that, although the husband was a necessary party, it would be a misjoinder to make him a plaintiff, and that he must therefore be made a defendant. In Barrett v. Doughty (1874) 25 N. J. Eq. 379, the bill was filed by husband and wife as co-complain. ants. A demurrer ore tenus because of the misjoinder of the husband as complainant was allowed, and it was ordered that he be made a defendant. In Tantum v. Coleman (1875) 26 N. J. Eq. 131, to a bill filed by a wife, a plea setting up the coverture, and the nonjoinder of the husband as complainant, was held to be bad, because he was neither a necessary nor a proper party complainant with her. In Paulison v. Van Iderstine (1877) 28 N. J. Eq. 310, a bill by husband and wife as co-complainants, filed in respect to the wife's separate estate, was held to be a misjoinder.

The uniform course of decision up to the year 1877, in cases such as that presently un

der consideration, declares that the husband was a necessary party, but that it was a misjoinder to make him a co-complainant with his wife. He must be made a defendant. While this was the state of the law, the revision of the married woman's act (Revision 1877, p. 638, § 11, now 2 Gen. St. p. 2014, § 11) was enacted. This statute enable a married woman to maintain an action in her own name, without joining her husband therein, for the recovery of all damages done to her separate property, and gives her the same remedy for the protection of such property as if she were an unmarried woman, and declares that in any proceedings. it should be sufficient to allege such property to be her property. Since this statute, it has been held that the husband is not a necessary party to a suit brought by a wife to protect her property, and demurrers to bills of complaint filed by the wife because of the nonjoinder of her husband as a party in such suits have been overruled. Castner v. Sliker (1887) 43 N. J. Eq. 9, 10 Atl. 493; Young v. Young (1889) 45 N. J. Eq. 41, 16 Atl. 921. The reasons for holding the association of the husband with the wife as co-complainant to be a misjoinder have been somewhat shaken by the effect of the statute of 1852, which destroyed the husband's estate by the curtesy initiate in lands to which the wife held title, and thus left him less ground of dispute with his wife as to whether the lands affected by her suit were in fact her separate property, held in trust for her, or lands to which she held title. The cases of Johnson V. Vail, Barrett v. Doughty, and Paulison v. Van Iderstine, ubi supra, decided after the act of 1852, however, all hold that it is a misjoinder to associate the husband as cocomplainant with the wife in a suit to protect lands owned by her. The grant of power to the wife to sue alone, without joining her husband in her suit, given by section 11 of the Revision of 1877 (now 2 Gen. St. p. 2014, § 11), if acted upon by the wife by suing alone, would seem to relieve the procedure from the presumption above referred to, which held a suit brought by husband and wife to be the suit of the husband only, and not binding on the wife. The power given to the wife by section 11 is, however, a mere enabling act. She is empowered, but not required, to sue in her own name, without making her husband a party. If she sues without him, she may do so in her own name, as sole complainant, under the power given her by section 11. If she desires to make him a party, she must follow the practice estabtablished by the modes of procedure in such cases before the enactment of section 11, and sue by her next friend, making her husband a party defendant.

It is claimed by the demurrant that the husband has no interest in the subject-matter of the suit, and that he cannot properly be a party to it. This view cannot be accepted. The statutes of 1852 and 1877 did

not deprive the husband of all interest in his wife's property. They secured its enjoyment to her, and enabled her to sue as a feme sole to protect it; but he still has an equity which this court will recognize, and which makes him, though not a necessary, yet a proper, party to his wife's suit. He still has power to prevent his wife from conveying her lands, for her deed made without his joining in making it is a nullity. If a child be born during the coverture, and he survives his wife, he will yet take in them an estate by the curtesy complete. If his wife succeeds in this suit, the permanent value of her lands, and consequently of the husband's possible interest, will be increased. If she fails, the value of the husband's equity may be lessened. Equity has recognized his interest as worthy of its protection. In Speakman v. Tatem, 48 N. J. Eq. 136, 21 Atl. 466 (affirmed on appeal), a husband had joined a wife in conveying her lands to a trustee. His marital right in her real estate thus conveyed was held to form a sufficient consideration for a postnuptial settlement by which an interest was secured to the husband, and his rights under that settlement were enforced. The practice since the married woman's act of 1852 seems to be established, that, in a suit for the protection of a married woman's property, her husband should not be joined with her as a co-complainant. Johnson v. Vail, and cases above cited. The husband is not a necessary party to such a suit, since the Revision of 1877, but is a proper party defendant, by reason of his interest in the subject-matter of the suit.

The demurrer must therefore be sustained on the ground of the misjoinder of the husband as co-complainant with his wife, with costs to the defendant, and leave to the complainant wife to amend by striking out the name of the husband as complainant. If she wishes to make her husband a party, it must be as a defendant, and in such case her suit must be in the name of her next friend as complainant.

DECKER et al. v. PANZ et al. (Court of Chancery of New Jersey. Feb. 16, 1903.)

ACTION AGAINST WIFE-SETTING ASIDE OF DEED-HUSBAND AS DEFENDANT.

1. Inasmuch as a husband's power of veto over the wife's conveyance of her own land enables him to retain in his wife's name the title to any lands of which she may be seised during coverture, so that in case she dies seised of an estate of inheritance, a child having been born of the marriage, an estate by curtesy vests in him, the husband is a proper party defendant in a suit against the wife to set aside a deed to her.

Suit by Alice Decker and others against Helen M. Panz and another. On motion to strike out the name of Jacob Panz as a defendant. Motion refused.

The original bill in this cause was filed by Austin R. Decker, in his lifetime, against Helen M. Panz and Jacob Panz her husband; alleging that, while weak in body and mind, the complainant was induced by the defendant Helen, by promise which she has in no way fulfilled, to convey to her a house and lot in Vineland. The bill prays that the deed to the defendant Helen may be declared to be null and void; that it may be decreed to be delivered up to be canceled, etc.; that Helen and Jacob, her husband, may be decreed to reconvey the premises to the complainant clear of all incumbrances by them, or any one under them; and that Helen and Jacob may be decreed to pay the costs. On petition the defendants were permitted to defend separately. At this stage of the case, before answer filed, the sole complainant departed this life, on the 25th of September, 1901. Ignorant of this fact, the defendants on the 30th day of September, 1901, filed separate answers. When the answers were filed, there was, by reason of the death of the sole complainant, no party in court to whom these answers could be responsive. An order of revivor was afterwards made, substituting the heirs at law as complainants in the place of the decedent. After the order for revivor was made, a stipulation between the new complainants and the defendant Helen M. Panz agreed that the answer of the defendant Helen M. Panz, previously filed, should stand as an answer in the revived suit. The defendant Jacob Panz now moves that his name be stricken from the bill of complaint as a party defendant, for the reason that he is not a proper or necessary party to the suit, that he is not interested in the subject-matter or objects of the suit, and that the complainants are not entitled to any relief against him.

Leverett Newcomb, for the motion. William E. Zellers, opposed.

GREY, V. C. (orally). The bill makes a husband and wife defendants with respect to the wife's ownership of the title to the lands described in the bill, with a prayer that a deed previously made to the wife may be decreed to be a nullity, and that the husband and wife may be decreed to "reconvey the premises to the complainants free and clear from all encumbrances," etc. The motion to strike out the husband as a defendant is based on the claim that he is neither a necessary nor a proper party, and that he has no interest in the object of the suit. The relation of a husband to his wife's separate estate, and his status as a party in a suit touching the same, were fully discussed in a recent opinion in this court in the case of Bristol v. Skerry, 54 Atl. 135. That was a case where the husband's status as a cocomplainant with his wife in a suit regarding her separate property was challenged as a misjoinder. In the case presently under

consideration, the status of the husband as a party is criticised on somewhat the same grounds advanced in Bristol v. Skerry, namely, that the husband has no place, even as a defendant, in a suit relating solely to a wife's separate estate. In the premises the bill alleges facts which the complainants claim entitle them to have the defendant husband and his wife execute a deed of reconveyance, and they pray for a decree to that effect. While the husband has no legal estate in lands the title to which is owned by the wife, yet he has an equity which makes him a proper party in any suit affecting those lands, and which makes him a necessary party in any suit where the relief sought involves the execution of a deed by the wife conveying those lands. Her deed, even of her own lands, without her husband's signature, is a nullity. This power of veto over the wife's conveyance of her own lands survived the married women's act of 1852, and all its subsequent amendments,,and appears to be all that is left of the estate formerly known as "tenancy by the curtesy initiate." The existence of this power in the husband enables him to retain in his wife's name the title to any lands of which she may be seised during the coverture, so that in case she dies seised of an estate of inheritance, a child having been born of the marriage, an estate by the curtesy complete instantly vests in the husband.

The motion to strike out the name of the husband as a defendant must therefore be refused, with leave to the husband to respond to the revived suit.

BITTLE v. CLEMENT et al. (Court of Chancery of New Jersey. Feb. 16, 1903.)

PURCHASE OF PROPERTY-UNEQUAL CONTRIBUTIONS-PRESUMPTION -EVIDENCE-SALE OF INTEREST-NOTICE TO PURCHASER.

1. Where two brothers purchase land jointly, and their contributions are unequal, there is a presumption whereby each party holds a share in the property according to his contribution.

2. Where two brothers purchased land jointly, their contributions to the purchase price being unequal, and they were both very ignorant men, the fact that the deed was made to both generally, and that one who survived the other charged taxes paid to himself and his brother's estate in equal portions, did not overcome the presumption that each held a share according to his contribution.

3. Where the purchaser at execution sale of the interest of a decedent in certain land which had been conveyed to the debtor and another generally had notice that the share of the debtor was not one-half, he was entitled to no greater portion than the actual share of the debtor.

4. Rents accruing after the death of a decedent and before the exercise of a power of sale go with the title of the land to the heir or devisee, and not to the executor, or to the purchaser under the power.

4. See Executors and Administrators, vol. 22, Cent. Dig. §§ 283, 541.

Suit by B. R. Bittle against Herbert I. Clement and others. Decree for complainant.

Watkins & Avis, for complainant. Robert S. Clymer and Robert C. Sparks, for defendant H. I. Clement.

GREY, V. C. (orally). After hearing the arguments of counsel, I am satisfied as to what the decree should be without further consideration. The circumstances of the case are as follows: The bill is filed for the partition or sale of 87 acres of land lying in Gloucester county, purchased from Harper Davis and wife by the complainant, Benjamin R. Bittle, and his brother, Daniel Bittle, by deed dated March 1, 1893, made by Davis and wife to Benjamin R. and Daniel Bittle. In payment of the purchase-money price Benjamin paid $1,250 and Daniel $550, and they jointly gave a mortgage for the residue, amounting to $2,000. On August 31, 1900, Daniel died testate, devising all his lands to Benjamin, and appointing him sole executor of his will, which was duly proved before the surrogate of Gloucester county. On the 28th of June, 1901, Herbert I. Clement recovered a judgment against Daniel's executor, and, because Daniel's estate was insufficient to pay his debts, the executor obtained an order to sell Daniel's real estate, and under this order advertised and sold Daniel's interest in the 87 acres above named. At the time of the sale, and before putting up the property at auction, notice was given that Daniel had paid but $550 of the purchase money, and that Benjamin R. had paid $1,250 of it, and that all Daniel's interest in the equity of the farm was in the proportion which $550 bore to $1,250. The defendant Herbert I. Clement. who had the judgment against Daniel's estate, bought in the farm with notice of this fact. The complainant, Benjamin R. Bittle, sets up the above-mentioned facts in the bill of complaint, and prays that a partition of the premises may be made between him and the defendant Clement according to their respective rights therein-that is, that he, the complainant, may have 25/36 and the defendant Clement 11/26 parts thereof; or, if it be found impracticable to divide the property, then that it may be sold, and the proceeds of sale divided between the parties according to their several rights therein. There is but a single matter of dispute raised by the answer of the defendant Clement. He insists that the complainant, Benjamin R. Bittle, is not entitled to an interest in the property in the proportion of 25/36 parts to 11/36 parts held by the defendant, but, on the contrary, asserts that the complainant's interest amounts only to the one equal half part, and that he, the defendant Clement, acquired by his purchase and is entitled to the other equal half part. The defendant joins in the prayer for partition or sale on the basis of the shares alleged in his answer.

The testimony offered proves that the com

plainant paid on account of the purchase money $1,250, that his brother, Daniel Bittle, paid on account of the purchase money but $550, and that the balance of the purchase money was secured by a mortgage given by both on the premises. At the sale at which Clement purchased Benjamin announced that at the time of the purchase of the farm the purchase money, which was $3,800, was secured in part by bond and mortgage given by Daniel and Benjamin for $2,000, and that of the balance Daniel had paid $550 and Benjamin $1,250, and that Daniel's interest in the equity in the farm was in the propor tion in which the sum paid by Daniel, $550, stood to $1,250, paid by Benjamin, and that Benjamin claimed to hold an interest in the equity in proportion to his payment of the purchase money. This notice was given at the sale, and the defendant Clement does not deny that he received the notice, and made his purchase subject to the information thus given. It appears by uncontradicted testimony that some years before the transaction here involved Daniel and Benjamin, who were brothers, owned their property in common. During this period there was no definition of the proportionate ownership of the brothers. No account was kept or taken to show what either contributed to the common property, nor what either took from it for his own use. There was no written agreement between them on the subject. They simply held and used their property in common. After a period of common ownership, they made a division, whereby Daniel took a mortgage for $2,000 for his several property, and Benjamin took a mortgage for $1,300, with an allowance of $700 in cash to him for his several property. The balance of the common property was not then divided. There is clear proof that before the brothers purchased the property now in dispute they had arranged to hold the mortgages and the balancing $700 of cash as the several property of each. When they purchased the property now in dispute, the proof shows they used this several property of each to pay for it. Each paid out of his own separate ownership, and not out of the joint ownership. In paying for it, Daniel contributed out of his private and individual funds $550, and Benjamin out of his private and individual funds $1,250. There is no denial whatever of this condition of facts, and it must be accepted as true, unless it be assumed that Benjamin Bittle, who testified to it, simply perjured himself on the witness stand. He is a very ignorant man. He knows how to write his name, and can recognize papers which he signed. He knows very little about business methods, but when under examination and cross-examination he frankly answered all questions, whether the answers were favorable or unfavorable to his interests in this suit, and gave the impression of a person who was speaking the truth. Benjamin is supported in his statement that