DOUGLAS, by her next friend, etc., v. BUTLER and another.
(Oircuit Oowrt, D. NtIW JflrB61/. March 15, 1881.)
1. EQUITY PRACTICE - SUIT BY MARRmD WOMAN - HUSBAND A PARTY
TO THE SUIT.
In a suit by a married woman, the husband should be joined in all cases where they have no antagonistic interests; but if it be otherwise, she should file her bill by her next friend, and make her husband a party defendant. Birn v. Heath, 6 How. 248.
Such defect of parties may be cured, however, by amendment. Johnson v. Vau, 1 McO. 426.
In Equity. On Bill, etc. F. O. LoU'thorp, Jr., for complainant. James Buchanan, for defendant. NIXON, D. J. This bill was originally filed in this case by a husband and wife against the defendant, to compel a surrender of the title and possession of certain real estate, situate in the city of Camden, New Jersey, to the wife, as her separate property; and at the outset we are met with the objection that the bill is fatally defective for the want of proper parties. The counsel of the defendant Butler insists that the correct practice in equity does not allow the wife to make her hus- . band a co-complainant, but that she should have sued by her next friend, and brought in her husband as a defendant. The old rule in such cases was to permit the wife to join her husband with her in the action-although there was no prayer for his relief-in all cases where the husband and wife had no antagonistic interests; but where these were likely to arise in the proceedings, the wife was required to file the bill by her next friend, other than her husband, and to make the husband a defendant. This rule was expressly sanctioned by the supreme court in Birn v. Heath, 6 How. 248, in which it is said: "Where the wife complains of the husband and asks relief against him, she must use the name of some other person in prose-
DOUGLAS V. BUTLER.
cuting the suit; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court," etc. Bn: the objection is not reckoned of much importance, as all the authorities agree that, where such a defect in the parties is brought to the attention of the court, the practice is not to dismiss the bill, but to give permission to the wife to amend by adding a next friend, and making the husband a defendant. Johnson v. Vail, 1 McC. 426. As the learned counsel for the defendant came into the case after the final hearing, and was permitted, by the courtesy of the counsel of the complainant, to file a brief in reply to his brief, it was not, probably, within his knowledge that such permission was craved by the complainant at the hearing, and granted by the court; and that, subsequently, John Cruikshank, on his own application, was allowed to enter his name in the suit as the next friend of Mary M. Douglasthe husband, Robert J. Douglas, being made a defendant. The bill of complaint is filed by Mary M. Douglas, by her next friend, against Dempsey D. Butler, claiming that before the first day of November, 1872, she was the owner in feesimple of two separate tracts of real estate in the said city of Camden, with a number of tenement-houses standing thereon, of the value of $7,000 or $8,000; that, residing out of the state, she had the property placed in the hands of an agent, to lease the houses and collect the rents; that about the seventh of February, 1873, she received a letter from her agent stating that the tenants refused to pay to him any more rent, the defendant Butler having served notice upon them. that he claimed the rents as the purchaser of the property on a public sale made by the city for non-payment of the taxes; that the complainant's husbarui, on her behalf, immediately went to the city of Camden, and had an interview with the defendant Butler, and requested from him a statement of the amount of money, including all costs and expenses; paid by him on said tax sales, with the expressed desire and purpose of paying the full amount of the claims of the defendant; and that
,h.e refused to comply with said request, not only upon that oocasion, but upon several subsequent interviews had during the months of March aneI April following, when he was visited for the like purpose. The bill also alleges that on or about the fifth of May, 1873, the oomplainant, in company with her husband and one George Greeley, had another interview with the defendant in the city of Camden, having first obtained from the receiver of taxes a statement of the amount for which the property had been sold for taxes, and the several sums paid by the defendant, and then tendered to him in the presence of said witnesses $350, and requested him to take therefrom all sums due to him by virtue of the tax sales, and to release and surrender the said real estate, and that the defendant refused to accept the said money, or any part thereof, or to release and surrender the said property; that another tender was made to the defendant in the presence of James and Tobias Johnson about the sixth day of October, 1874, of the sum of $600, and still another of the thirty-first of October, 1874, by C. A. Bergen, Esq., on behalf of complainant, and in presence of George W. Humphreys, of the sum of $500, both of which were refused by the defendant, he alleging in both instances that the amounts so tendered were not sufficient to cover his payments and expenses, and at the same time refusing to give to complainant any statement of what sums he had paid and expended on account of the said real estate. The bill further alleges that the complainant had been always read"y and willing, and was still ready, to pay to defendant all amounts of money required to redeem said property, and prays that the defendant may be decreed to surrender the possession of said real estate and premises; to release and quitclaim all the defendant's (Butler's) right, title, and interest therein, acquired by virtue of said tax sales, and to pay to complainant an amount equal to all the rents and profits accruing and received from said real estate from February 7, 1873, in excess of the amounts for which the property was sold for taxes.