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The situation of strip C is somewhat differ- , dence as to all the land condemned would ent. The evidence indicates that Howell did indicate that Smith & Welsh first acquired claim to be its owner for several years prior title from the Freeman heirs, availing themto his death. This strip, which is only part selves of the assistance of the Clarks in of the tract conveyed by his executors to so doing; that, having got this title, they Smith & Welsh in June, 1894, lies between used it to make an advantageous bargain Water street, on the west, and the Raritan with the fruit jar company, to whom they river, on the east, and the canal runs through paid nothing, and with the Howell estate, it. Its frontage on Water street is 38 feet. to whom they paid $2,000; and that, beof this frontage, only 10 feet were taken by ing thus fortified with the appearance of an the railroad company. Smith & Welsh paid adverse title, they utilized that, first, by $2,000 for the entire tract. The jury award- means of a bill to quiet title, to cut off those ed $3,676.21 for the portion of it taken, the Freeman heirs (except the Clarks) who had commissioners having given still more. It not conveyed to them; and, secondly, to bar will thus be seen that the executors were con- the Clarks from any share of the condemnatent to take, for such title as their testator tion money. Even if the title by adverse bad in it, a sum much below its market possession were clearer than it is, I do not value. The evidence relating to this branch think Smith & Welsh could use it for the purof the case is as follows: Van Duzen testi- pose of defeating the Clarks' right. They fies that in 1873 he made a bargain with John were tenants in common with the Clarks of R. Howell, a son of Martin Howell, to store the paper title. They expressly admitted some bricks upon the property. Kenny tes- this relationship in the sealed instrument to tifies that in 1874 or 1875 one Schenck start- which I have already referred. If this tened a coalyard there. Fisher testifies that ancy in common did not of itself create a rewhen he came to New Brunswick in 1881 the lation of a trust or confidence, the letters and land in question was occupied by one Cole action of Mr. Grimstead, no less than Clark's for a stoneyard. In 1885 the fruit jar com- letters, show that such a relation did, in point pany and Howell used the property for the of fact, exist. It appears that, after Smith storage of brick. After 1885 the property & Welsh had obtained the conveyances I was occupied by John R. Howell for a coal have mentioned, they filed a bill to quiet title and stone yard. Back of 1873 the evidence against the heirs of Alpheus Freeman who of possession is extremely vague. Mr. Louis had not conveyed to them. Mr. Grimstead, Howell, a nephew of Martin Howell, testifies their solicitor in that suit, did not make the that in 1844 the property was all open, and Clarks parties, because, as Mr. Grimstead not docked out; that it was not docked out says, “it might prejudice any claim he (Clark) as late as 1862, but was docked out at some had in the property." "I would not make indefinite period after that. The property him a party defendant,” he testifies further, appears to have been fenced at the time that “because I did not want to cut off any interSchenck came there in 1874. Prior to 1873, est he might have. I wished to preserve to I doubt very much whether the evidence bim any right, title, or interests or claim shows anything more than that, the land be- which he might have to this property, or any ing open, any one who wished to make a tem- portion of it, intact, which he could enforce porary use of it could have done so. Prior at any time he saw fit." Mr. Grimstead to that time I do not find any tangible evi- says, indeed, that he told Clark he could not dence of hostile and exclusive possession on make him a party complainant, because his the part either of Martin Howell or of his interests were antagonistic to the interests sons. After that time, Howell, who owned of Smith & Welsh, but this must be a misdock property north and south of it, appears take. If they were antagonistic, they were to have taken possession. Possibly, on the antagonistic for the same reason that the inprinciple laid down in Davock v. Nealon, 58 terests of the other heirs were antagonistic. N. J. Law, 21, 32 Atl. 675, Howell's heirs or This would be a reason for making them pardevisees (the will is not in evidence) might be ties defendants, and not a reason for not deemed to have gained title by adverse pos- | making them parties at all. Unless I attribsession. But Howell died in 1889, and the ute want of good faith to Mr. Grimstead, I deed to Smith & Welsh was not made by his must conclude that the Clarks were not made heirs and devisees, but by his executors. It parties because Mr. Grimstead really wished, purports to convey by virtue of the power as he says, to preserve, and not to destroy, and authority given in the will. It does, in- their interest, inasmuch as they were allies, deed, declare that it conveys the right, title, and not enemies. It is perfectly plain that and interest of the party of the first part, at that time he desired and obtained their viz., Frederic De Coppet, Abel I. Smith, and assistance in a common undertaking. The the widow, as well as of the testator; but very purpose of filing the bill would have what that interest, if any, is, does not ap- been defeated by making them parties depear. As no title by adverse possession for fendant, for they would then have resisted 20 years prior to 1889 is shown, it cannot be the suit, and in doing so might have estabasserted that by this deed Smith & Welsh lished not only their own right to part of the acquired a title superior to the paper title money, but that of the heirs who had not held in common with the Clarks. The evi- executed conveyances. It is well settled that, as a general rule, one tenant in common will in either case, and that is the loss of "connot be permitted to purchase a superior out- sortium" or the society and comfort of the standing claim for his own exclusive benefit. husband. There is a demurrer to each of Freeman on Co-Tenancy, $ 154. If the ton- the counts. The causes of demurrer are (1) ants claim, as here, under separate convey- that no such action at law can be brought ances, it has been doubted in some of the by the wife; and (2) that the husband is cases whether a relation of confidence should not joined in the action as coplaintiff. This be held to arise out of the mere fact of com- right of action has been known to exist at the mon ownership. In Bracken v. Cooper, 80 common law in favor of a husband against Ill. 221, and Montague v. Selb, 106 Ill. 50, it a seducer of his wife's affections since the was held that the fact that title was derived decision in Winsmore v. Greenbank, Willes, through separate conveyances made no dif- 577, in the year 1747. But no case appears ference. It is not necessary to decide this in the long line of English decisions where question, for here, as I have stated, a rela- the wife has brought a corresponding action tion of confidence did in fact exist, and, ac- for a similar invasion of her marital rights. cording to all the cases, this would prevent This is not surprising when we reflect upon the tenant purchasing the outstanding title the disabilities which attached to the wife from claiming the exclusive benefit of his as a result of coverture, under the common purchase.

law; for in order to obtain redress for torts I think the order directing the payment of to her person or reputation it was necessary the money to Smith & Welsh should be so for the husband to join in the action, and modified as to permit the Clarks to come in the damages, when recovered, if collected in and share in the fund on making proper con- his lifetime, belonged to the husband. To tribution. They have offered to recognize have entertained an action of the character the agreement made with the fruit jar com- we are now considering in favor of the wife pany, and I think they should contribute to it would have become necessary to join the the payment made to Howell's executors. husband, and thus enable the wrongdoer to

realize a profit from his own wrongdoing.

We find no allusion to the existence of such (69 N. J. L. 490)

a right of action in favor of the wife, in HODGE v. WETZLER.

the decisions and treatises upon the common (Supreme Court of New Jersey. June 8, 1903.) law, until the appearance of a dictum of MARRIED WOMEN-ENTICING AWAY HUSBAND Lord Campbell in the case of Lynch V. -RIGHT OF ACTION.

Knight, 9 H. L. Cases, 577, which was de1. A married woman could not, at the common law, maintain an action for enticing away

cided in 1861. The action was for slanderous the husband and for the alienation of his af

words affecting the character of the wife. fections.

whereby it was alleged that she had lost the 2. Nor is such a right of action conferred

affection and society of her husband. It upon a married woman in this state under the married womau's act (Ge St. p. 2012), or un

must be observed that in this case the husder the twenty-fourth section of the practice

band joined the wife in bringing the action act (Gen. St. p. 2536).

"for conformity," as there was no enabling 3. The deinurrer to a declaration setting forth

act authorizing her to sue. Lord Campbell such a cause of action in this case was sustained.

said: "If it can be shown there is presented (Syllabus by the Court.)

to us a concurrence of loss and injury from

the act complained of, we are bound to say Action by Alphine Hodge against Leana

this action lies. Nor can I allow that the Wetzler. Demurrer to declaration sustained.

loss of consortium or conjugal society can Argued February term, 1903, before GUM

give a cause of action to the husband alone." MERE, C. J., and FORT, PITNEY, and

In a subsequent portion of his decision he HENDRICKSON, JJ.

says that the better opinion is that a wife Warren Dixon, for plaintiff. Corbin & could not maintain or join in an action for Corbin, for defendant.

criminal conversation against the paramour

of her husband who had seduced him. Lord HENDRICKSON, J. This action is brought Cranworth was strongly inclined to think by the plaintiff, a married woman, against that the view expressed by Lord Campbell the female defendant, to recover damages for was correct, but did not feel called upon to the alleged alienation of the husband's af

express a decided opinion, as it was agreed fections and the resulting loss of his society,

that the judgment of the court should be put comfort, aid, assistance, and support. There upon another ground. Lords Brougham and are two counts to the declaration, each set

Wensleydale expressed the view that the acting forth substantially the same cause of tion would not lie. In the American cases action, the only difference being that in

there has been developed a divergence of the first count there is added to the aver

views as to whether the married woman had ment of enticing away the husband, etc.,

the right of action at common law for the the more aggravated charge of criminal con

alienation of her husband's affections. This versation. The gist of the action is the same

right is denied in the following, among oth

er, cases: Lellis v. Lambert, 24 Ont. App. f 1. See Husband and wife, vol. 26, Cent. Dig. 3 1119.

653; Morgan v. Martin, 92 Me. 190, 42 Atl. 65 A,-4

354; Doe v. Roe, 82 Me. 503, 20 Atl. 83, 8 all damages done thereto, and she shall have L. R. A. 833, 17 Am. St. Rep. 499; Crocker v. in her own name, the same remedies for Crocker (C. C.) 98 Fed. 702; Duffies v. Duf- the recovery and protection of such propfies, 76 Wis. 374, 45 N. W. 522, 8 L. R. A. erty as if she were an unmarried woman; 420, 20 Am. St. Rep. 79; Mehrhoff v. Mehr- and in any civil or criminal proceedings it hoff (C. C.) 26 Fed. 13; Clow v. Chapman, shall be sufficient to allege such property to 125 Mo. 101, 28 S. W. 328, 26 L. R. A. 412, be her property.” Under that act, sections 46 Am. St. Rep. 468. Among the cases where 1, 2, 3 and 4 define what is meant by sepathis right is held to have existed are the fol- rate property, to wit, real and personal proplowing: Foot v. Card, 58 Conn. 4, 18 Atl. erty, and the rents, issues, and profits there1027, 6 L. R. A. 829, 18 Am. St. Rep. 258; of, which she receives or obtains "by purHaynes v. Nowlin, 129 Ind. 584, 29 N. E. 389, chase, gift, grant, devise, descent, bequest or 14 L. R. A. 787, 28 Am. St. Rep. 213; Postle- in any manner whatever"; also, her wages waite v. Postlewaite, 1 Ind. App. 473, 28 N. and earnings and the investment thereof. In E. 99; Smith v. Sinith, 98 Tenn. 101, 38 S. the interpretation of statutes like this, though W. 439, 60 Am. St. Rep. 838; Bassett v. Bas- they may be regarded as remedial in charsett, 20 Ill. App. 543; Bennett v. Bennett, 116 acter, being in derogation of the common law, N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. In they must be construed strictly. Alpaugh the majority of these cases, and in a large v. Wilson, 52 N. J. Eq. 424, 28 Atl. 722; 23 number of others noted in 15 Am. & Eng. Am. & Eng. Enc. of L. 386–389. We must Enc. (2d Ed.) 865, notes 3 and 4, it has been also have regard to the fact that notwithheld that by reason of the disability of cover- standing this and other statutes have been ture the right of action remained in abey- passed removing, in many respects, the disance, and could not be prosecuted by the abilities of a feme covert, it is held by our feme covert in her own name. But it bas courts "that the rule of the common law been generally held in these cases that, that the husband and wife are to be rewhere the ban of coverture has been remov- garded as one person has not been abrogated ed by enabling statutes giving her the right in this state.” Alpaugh v. Wilson, supra, to sue as a feme sole, she may maintain this affirmed. 52 N. J. Eq. 589, 33 Atl. 50. The action.

property intended by this act is so earmarked This case is one of first impression in this by the words “real and personal property," state, for although McKenna v. Algeo (Feb., "separate property," "the rents, issues and 1902) 51 Atl. 936, was a similar action, the profits thereof,” as to leave no doubt but case was heard upon a motion for a new that the words “real and personal property" trial, and the opinion shows that the right are used in their ordinary, natural meaning to bring the action was not considered by the as indicating property that has a present court. The new trial was granted upon an- money value, and from which income and other ground. We are entirely satisfied, both profits ordinarily arise. It would be giving upon principle and authority, that, whatever the words an exceedingly broad and unusual may be the true theory of the wife's right meaning, under the circumstances, to have of action in the abstract at common law, no them embrace within their meaning the "conremedy then existed whereby such right of sortium,” which at most is only a marital action could be maintained. We do not deem right growing out of the marriage relation. it necessary in this case to discuss the ques- It was held by the Court of Errors in Penn. tion of abstract right just alluded to, for R. R. v. Goodenough, 55 N. J. Law, 577-588, the reason that, conceding its existence, we 28 Atl. 3, 22 L. R. A. 460, that the language fail to find a statute of this state empowering of the above section is inapplicable to a right a married woman to sue as a feme sole in to sue for a tort, on the ground that no rent, actions of this character. I may say that it issue, or profit, in the sense of the statute, was conceded on the part of the demurrant can arise out of a tort. It seems clear that that the right of the wife to maintain this the section in question fails to confer the action at common law was at least debata- right to bring this action. We turn to the ble; but it was contended that such right twenty-fourth section of the practice act, arises under section 11 of an act entitled "An which provides that any married woman “livact to amend the law relating to the prop- ing separate from her husband” may bring erty of married women” (Gen. St. p. 2012), suit in her own name for the recovery of and under section 24 of the practice act (Gen. damages for any injury done to her person St. p. 2536).

or reputation. The injury complained of It is contended that the "consortium" may does not purport to be one to plaintiff's be regarded as property, and that therefore reputation. Is it an “injury to her person," the former act will apply. The section pro- within the meaning of the statute? The vides "that a married woman may maintain cause of action complained of is the alleged an action in her own name and without join- violation of conjugal rights. Clearly, it is ing her husband therein for all breaches of not an “injury to the person,” in the strict contract, and for the recovery of all debts, sense of the term, but to the relative rights Wages, earnings, money and all property, of the individual. If it be contended that both real and personal, which by this act is the words “injury to the person" are equivadeclared to be her separate property, and for lent to the expression “injury to personal


rights," then why does the statute use the words "damage to the person or reputation"? For under such a construction the words "injury to the person" must include injury to reputation as well as to all other personal rights, and the use of the word "reputation” in the statute would be superfluous. And applying that rule of construction which gives effect to every word of a statute when possible, it follows that the words “injury to the person" are not the equivalent of the words “injury to personal rights." Similar views are expressed in Wagner v. Lathers, 26 Wis. 436, and in Lellis v. Lambert, supra.

We think it is apparent that this statute was not designed to create new causes of action, but to give to the wife, when living separate, the right to sue alone in the same actions in which, prior to the act, it was necessary that the husband should join. The result would seem to follow that, if the wife had no action at common law for the alienation of her husband's affection, she cannot derive such a right from the statute in ques. tion. In some jurisdictions the denial of this right of action to the wife has been characterized by the judges as an unjust discrimipation against her. In other jurisdictions this class of actions has been regarded as of doubtful expediency. But we think these and similar considerations are for the Legislature rather than the courts, and that it is our duty, if possible, to declare the law as it is, and not as we may think it should be. For the reasons stated, we think the present action cannot be sustained. Therefore the other grounds of the demurrer need not be considered.

The demurrer is sustained, with costs.

for the benefit of the wife. There, as here, the stock representing the money put in was, most of it, issued to the wife. There, as here, the debtor took one share of stock to qualify him to become a director and president, and there, as here, the stock, chiefly through the debtor's skill and experience, increased greatly in value and the company earned and paid large dividends. It was there held by the Court of Errors that the wife and her transferees were not only entitled to retain the stock as against her husband's creditors, but were also entitled to the company's earnings, although, as Mr. Justice Magie said in that case, the corporation owed its success to the busband's business ability and exertions.

I cannot find anything in the proofs to differentiate that case from this. The evidence is voluminous, and some of it vague and conflicting, but the material facts are few in number and not controverted. Much of the evidence relates to a period when the company's affairs became prosperous, and has little, if any, bearing upon the merits, being admitted only because it was claimed that it would throw a reflex light upon the period of organization in 1892. It does not seem to me to illumine that period at all, or to cast any doubt upon the real character and the good faith of the original transaction, if we view it in the light of the law as authoritatively laid down in Taylor v. Wands. For three years the company had a precarious existence, having few assets, loaded down with debts and subject to chattel-mortgage sales. Had this suit been brought during that period, there would have been absolutely nothing on which to found a decree that the stock or the property was really the husband's and subject to his debts. The mere fact that this company, after that time, became prosperous, and that its prosperity was due in large measure to the efforts of the husband, in his character of officer and manager, cannot convert that into his prop erty which before belonged to his wife. Section 9 of the bill of complaint charges that the stock of the company belongs to Joseph K. Osborne, but that 50 shares stand in the name of his son Edgar; and section 15 char. ges that the stock is in equity subject to the lien of the judgment. In support of this vague allegation, the plaintiff relies upon the following facts: Edgar came of age on June 29, 1894. Both before and after that time he lived with his father. At the age of 17, he went to work in a printing office in New York. He received first $5 a week, and afterwards $10. A part of his earnings he, with his father's consent, invested in stock of the Eighth Ward Building & Loan Association. The investment was made in his own name. When the J. K. Osborne Manufacturing Company was organized he sold this stock, and gave the proceeds ($400) to its treasurer. For tbis he received on October 29, 1892, three shares of the J. K. Os

(64 N. J. E. 614)

WISNER v. OSBORNE et al. (Court of Chancery of New Jersey. May 16,


ITORS OF FATHER. 1. An insolvent debtor permitted his infant son who lived with him to contract for wages to be paid to the son. Held, that the stock of a corporation into which the wages were afterwards converted, and which stood in the name of the son, was not subject to the claims of his father's creditors. (Syllabus by the Court.)

Bill by Ferdinand H. Wisner against J. K. Osborne and others. Decree for defendants.

J. A. Beecher and Mr. Thompson, for complainant. John R. Hardin, for defendants.

STEVENS, V. C. This case is in its essential features like Taylor v. Wands, 55 N. J. Eq. 495, 37 Atl. 315, 62 Am. St. Rep. 818. There John Taylor, as here J. K. Osborne, having failed in business and being heavily indebted, undertook to form a corporation, putting in, as capital, money derived from the surrender of an insurance policy issued


borne Company About the same time he dian; for though he may receive the profits went into that company's employ, receiving, (of land held by socage tenure) during the first, $5 a week, then $10, and afterwards child's minority, yet he must account for

On April 27, 1895, the company was them when he comes of age." As to perindebted to him for salary the sum of about sonalty, says Judge Vredenburg, in Graham $800. , On that day an agreement in writing v. Houghtalin, 30 N. J. Law, 557, when a was entered into between himself, his father child in the lifetime of its father becomes and mother, and one Wolfe for an apportion- vested with it, “no one is strictly entitled ment of 175 shares of unissued stock, by to take it as guardian until a guardian has the terms of which he was to receive and did been duly appointed by some public auin fact receive 32 shares. This was received thority." Under paragraph 38 of the orby him apparently in satisfaction of the phans' court act (Gen. St. p. 2363), first enmoneys owing to him at the time by the acted in 1843 (P. L. p. 84), the father may company. The stock-certificate book and the be appointed guardian of the estate real and minutes show that the stock was issued to personal of his minor children. The law is the stockholders in a very irregular way, that the minor's property, however acquired, but, so far as Edgar's liability to the com- is his own, and that even the father, if he plainant is concerned, these irregularities be trusted with its administration, must acare not very material. The issue to Edgar count to the infant for it when he comes of of three shares is thus shown to have been age. made at a time when he was a minor, and This is the status of the minor's property. the $800 for which the 32 shares were is. Now, as to his earnings. Says Blackstone sued represented wages or salary due in part (volume 1, p. 453): "He [the father) may inbefore and in part after he came of age. The deed have the benefit of his children's labor contention is that the money which Edgar while they live with him and are maintained put in and the wages due for his labor be by him, but this is no more than he is entitled fore his majority belonged to his father, to from his apprentices or servants." But it and that consequently the stock given for has been held that if the contract, made with them is, in law, stock held by him in trust his father's consent, be to pay the child, then for his father and subject to the claims of the child is entitled to his earnings, and may his father's creditors.

enforce his right to them by suit. Snediker I will assume that the before-mentioned

v. Everingham, 27 N. J. Law, 143. They beallegations of the bill are sufficiently specific long to him just as any other property belongs to permit of this contention being urged. to him. It is obvious that the contract may On that assumption, I do not think that the assume several phases. The father may (1) claim can be maintained. The question is, contract with the employer for his son's servcan a father who is indebted permit bis minor ice, and may expressly stipulate that the son, as against his creditors, to receive and wages shall be paid to him (the father); or invest his earnings and hold them as his (2) he may stipulate generally for such servown? According to the Roman law, chil- ice without saying to whom the wages shall dren of any age, begotten in lawful wedlock, be paid, and in either case he alone will be were under their father's power.

As re- entitled to sue for them; or, (3) as was done garded the person this power, until after the in Snediker v. Everingham, 27 N. J. Law, 143, time of Augustus, extended to their life and he may stipulate that the wages shall be paid liberty; as regarded property, in the words to the son, in which case the son may sue for of the Institutes, lib. 2, tit. 9, "Anciently them; or (4) the son, with the father's conwhatever came to children, male or female, sent, may make the bargain for wages paywas acquired for the parents without any able to himself (the son), in which case also distinction, if we except the 'peculium cas- the son may sue for them, and the father's trense,' and this so absolutely that what was consent may be expressly given or it may be acquired by one child the parent might have implied from circumstances. Stall v. Fulton, given to another or to a stranger, or sold it 30 N. J. Law, 430. It has always been the or applied it in what manner he thought law that an infant's contract, beneficial to proper.” In the time of Justinian, however, himself, is not necessarily void, but, in genthe father was only permitted to take the eral, voidable at the option of the infant when usufruct of what the son had acquired by be arrives at full age. It is often capable of any other means than his father's fortune, being enforced by the infant against the othThe father might indeed have emancipated er party to it. The law is thus stated in the son, but emancipation, at any age, de- Bacon's abridgment (title “Infancy and Age," pended almost entirely upon the father's will. vol. 5, p. 134): "It is laid down as a genIn striking contrast with the civil law is eral rule that infancy is a personal privilege, the common law. That law gives the in- of which no one can take advantage but the fant's property to the infant. It does not infant himself, and that therefore, though the even give the father the usufruct or en- contract of the infant be voidable, yet that it joyment of it during the limited period of shall bind the person of full age. For being the son's minority. Says Blackstone (volume an indulgence which the law allows infants 1, p. 453): “A father has no other power over to protect and secure them from the frau' his son's estate than as his trustee or guar- and imposition of others, it can only be in.

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