
    Wilson v. Garaghty, Appellant.
    
    1. Ejectment for Wife’s Land: husband only proper party defendant, when. The wife is not a proper party defendant to an action of ejectment for land claimed by her under a deed which vests the title in her, but confers no separate estate; nor can she make herself such by claiming a separate estate in her answer. The husband’s marital interest gives him the right to the possession, and he alone should be sued.
    2. -: death of husband ; wife’s subsequent possession : APPEAL. Where judgment in ejectment goes against husband and wife jointly for land in which the husband has a marital interest as against her, and pending an appeal the husband dies, the suit abates as to him. After his death the possession becomes hers, but this will not support the pending judgment against her or authorize the rendition of a new one.
    
      Appeal from Cape Girardeau Court of Common Pleas — Hon. Hamilton G. Wilson, Judge.
    Reversed.
    
      Alex. J. P. Garesche for Mrs. Garaghty, appellant.
    1. Mrs. Garaghty is not a proper party defendant. There being in the deed to her no words of exclusion of marital interests, it was an individual estate, over which the husband claimed rights. Bauer v. Bauer, 40 Mo. 62;. Tillman v. Tillman, 50 Mo. 41; Paul v. Leavitt, 53 Mo. 598; Valle v. Obenhause, 62 Mo. 85. As the only tenant in possession he was the proper party to be sued. Adams on Ejectment, Waterman’s notes, p. 889, § 327; p. 24; p. 233. Iler participation m holding the land, will be deemed his act. Meegan v. Gunsollis, 19 Mo. 417; Dailey v. Houston, 58 Mo. 361; Park v. Hopkins, 2 Bailey 411; Estill v. Fort, 2 Dana 237; Tobin v, Connery, 13 Ind. 65; Marshall v. Oakes, 51 Me. 308; People v. The Judges, 21 Wend. 20; Gaylord, v. Payne, 4 Conn. 190; McGlaughlin v. O'Rourke, 12 Iowa 459; Tanner v. White, 15 Ala. 798; Sprague v. Daniels, 31 Ala. 444; Aiken v. Davis, 17 Cal. 119; Trimble v. Miller, 24 Texas 215; Parke v. Kleeber, 37 Pa. St. 254.
    2. Ejectment is-a statutory and of course a legal remedy, founded only on a legal title. Hence the general judgment against the wife is void. Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 Mo. 157; Caldwell v. Stephens, 57 Mo. 597; Wernecke v. Wood, 58 Mo. 358; Meegan v. Gunsollis, 19 Mo. 419; Hunt v. Thompson, 61 Mo. 154; Weil v. Simmons, 66 Mo. 620; Jackson v. Bowles, 67 Mo. 614.
    
      R. H. Whitelaw and Ewing, Pope & Hough for respondent.
    Mrs. Garaghty was a necessary party as she was a party in interest. 2 Wag. Stat., § 6, p. 1001; Boal v. Morgner, 46 Mo. 48. The deed of trust through which plaintiff claims states that it is the wife’s separate property, and she so claims it in her answer. . The deed from her husband to her conveys it to her sole and separate use, and her husband swore on the stand it was her separate estate. Even if she was not originally a necessary party she set up an equitable defense, thereby making herself a necessary party.
   Sherwood, C. J. —

We are all agreed that this ejectment should have been brought against the husband alone, as it is clear from the deeds adduced in evidence thatthough at one timehis wife, Louisiana,m consequence of the conveyance of her husband to her, possessed an equitable separate estate in the land, yet that in consequence of the subsequent conveyance by them to Patrick Garaghty, and of his reconveyance to the wife, without the use of any words except those ordinarily employed in conveyances, that the wife had no separate estate in the land. This being the case, the husband’s marital interest gave him the right to the possession of the land, and he was the only proper and necessary party defendant in an action of ejectment Hunt v. Thompson, 61 Mo. 148, and cases cited; Boal v. Morgner, 46 Mo. 48. And the result just announced is not at all affected by the facts that she in her answer claimed a separate estate in the property, and introduced testimony in support of such claim, since such testimony, as the casé is now presented, could not countervail the force and eflect of the conveyances heretofore mentioned. The wife being improperly joined, and judgment taken against both husband and wife, the judgment against the latter was erroneous. Hunt v. Thompson, supra.

And though the judgment was properly entered against the husband, yet as he was only entitled.to the possession of the property during the life of his wife, (so far as shown by the record,) and as pending this appeal, and prior to the submission of this cause, the husband has died, it follows that the suit as to him must abate; this not being one of those instances where a sci. fa. can properly issue ; as no one under the circumstances already detailed, can, as to the possession, claim under him, nor, as to such possession, be his representative. For these reasons, and for the error committed in making the wife a party defendant, the judgment will be reversed, and since the wife did not occupy toward her husband the position of terretenant, but has become subsequently to, and in consequence of, his death, entitled to a new and independent possession of her own, it follows that plaintiff had no cause of action against her at the commencement of this suit, but will be driven to a new action; we, therefore, make no order remanding the cause.

All concur.  