
    James W. White, Angelica Broom and Mary Frances Dawson vs. Jas. H. Hilton.
    Law. No. 23,123.
    ( Decided May 7, 1883.
    
      i The Chief Justice and Justices Hagneb and Cox sitting.
    1. Though a married woman come into possession of real estate after the passage of the Married Woman’s Act of 1869, if her title be derived through a will which took effect prior to the passage of the act, her rights in the property are not affected by the actjbut are to be determined by the common law.
    2. The husband has a freehold in such of the wife’s freehold property as she acquired prior to the act of 1869, and although her title be a. joint tenancy, he is entitled, in right of his marriage, and during thecoverture, to the possession and the rents and profits.
    3. Where such a title is held by the husband it is equivalent to a freehold, and ejectment by the wife and her joint tenants to recover the possession, cannot be sustained unless the husband be joined in the-action.
    4. Where the question is one of personal capacity to sue, as coverture,, it should be pleaded in abatement, but where the question is one office, as that the title claimed by one of the female plaintiffs in ejectment is in her husband (who is not a party to the action) and not in. herself, this may be shown under the general issue.
    STATEMENT 0E THE CASE.
    This was an action of ejectment brought by the plaintiffs above named to recover possession of part of a lot of ground situated in Washington, D„ C., in which they claimed a fee-simple.
    
      The title of the plaintiff's was derived from the following clause of-the will of William Magill, executed in November, 1842 : “ I devise to Ann Hardy part of lot one (1) in square nine hundred and seventy-five (975), together with all the improvements thereon, during her natural life, and at her decease, I devise said property to my three grandchildren^ Angelica Fowler, James William White, and Mary Frances White, them and their heirs forever.”
    The testator died in 1843, and the will was probated in the same year. Ann Hardy, the life tenant, died in 1876.
    •The above facts were shown upon the trial, but in addition it appeared that one of the plaintiffs, viz., Mary Frances Dawson, who was the Mary Frances White mentioned in the will, was, before the filing of the suit, and at the time of trial, a married woman ; that her husband was living, and that there had been children born of the marriage. At the close of the plaintiffs’ case, defendant’s counsel moved the court to instruct the jury, “that'the plaintiffs could not recover in the present action because of the non-joinder of the husband of the co-plaintiff, Mary Frances Dawson, he being a necessary party.” The motion was granted, and the court instructed the jury to return a verdict for the defendant, which was done, and the case came before the General Term upon an exception to this instruction.
    W. K. Duhamel and C. F. Rowe for plaintiffs:
    The devisor left a life estate to Ann Hardy, with a ■remainder to the plaintiffs and their heirs ; such at common law is a joint tenancy. 1 Greenleaf’s Cru., 364; 3 Id., 330, Tit. 38, c. 15, §§ 6 and 7; Tuckerman vs. Jefferies, 11 Mod., 108; Hurd vs. Lenthall, Stiles, 211, 3 Bacon Abr., 681; Doe vs. Southern, 2 B. and Adol., 635.
    The Maryland acts (1794, c. 60, § 8, and 1797, c. 114, § 5) for partition recognize joint tenancies, and have relation to persons who cannot act for themselves.
    Because they permit a severance does not destroy joint tenancies, as every adult could destroy the tenancy. 2 Williams’ Real Property, 132.
    
      A joint tenancy existed in Maryland by the common law. Mayberry vs. Brien, 15 Pet., 35; Hannan vs. Towers, 3 H. & J., 149; Johnson vs. Howard, 1 H. & McH., 281.
    And that State, by the act of 1822, c. 162, simply reversed the rule of construction. Even if the courts and bars of Maryland and the District have so long remained in error, a new rule would be against the policy of the law and disturb the titles to estates. Peters vs. Suters, 2 Mac A., 519.
    The act of 1876, it is said, ignores them ; therefore they do not exist. But they are not within the evil sought to be remedied by the act. It seeks to compel a partition. In joint tenancy, each tenant by his own act can destroy.
    This court has, however, recently recognized the existence of joint tenancies. Butler vs. Butler. (Ante, p. 96.)
    Mrs. Dawson being a joint tenant, no right has ever vested in her husband which requires him to be a party. 1 Glf. Cru., 166; Id., 842, 364; Williams’ Real Property, 219.
    Again, the lite tenant died and the plaintiffs only became seized December 28, 1878; seizen is necessary to entitle the husband to any right, and the statute has intervened ; 2 Kent Com., 29; Dunn vs. Sergeant, 101 Mass., 339.
    The record does not show that she was married at the passage of the act or at the death of the life tenant.
    But assuming" the husband was a necessary party, or had rights, such defects must be availed of by plea in abatement, and could not be made on the general issue. 1 Ch. Pl., 66; Green vs. Liter, 8 Cr., 242; 2 Wh., 306.
    Ann Hardy was left a life estate, and the testimony shows she occupied the premises after the death of the devisor. It is a presumption of law that she occupied under, and her possession was that devised by the will. Colver vs. Warford, 20 Md., 395, 396; Austin vs. Bailey, 37 Vt., 223; McCall vs. Pryer, 17 Ala., 537; Hall vs. McLeod, 2 Metc. (Ky.), 102.
    There having been possession by the devisor and the life tenant, it was only at her death their title accrued; in 1878. Webster v. Cooper, 14 How., 502.
    We are hot obliged, to show a perfect legal title ; we may show color of title and possession ; or possession alone is sufficient, and the devisees of one who died possessed is entitled to recover. McCall vs. Pryor, 17 Ala., 536, 537; Smith vs. Lorillard, 10 John., 354; West vs. Pinn, 4 W. C. C., 693; Hylton vs. Brown, 1 W. C. C., 204; Turner vs. Aldridge, 1 MacAl., 232; Robinson vs. Campbell, 4 Wh. 224 (n. a); Christy vs. Scott, 14 How., 292; Burt vs. Panjaud, 99 U. S. 180; Campbell vs. Rankin, 99 U. S., 261.
    Bradley & Duvall for defendants :
    The proof shows that the alleged possession of plaintiffs was under the Magillwill, by virtue of the devise of a vested remainder to them as tenants in common ; but in that estate the husband of one of the plaintiffs, Mary P. Dawson, in jure uxoris, had a life estate as tenant by the courtesy, and as such tenant was, entitled to the possession and profits to the exclusion of his wife. There was no error, in the ruling of the court below that he should have been a party plaintiff in this action, for he was a necessary party.
    'A tenant by the courtesy initiate may sue alone for the possession of his wife’s land and for damages for withholding it. Gregg vs. Tesson, 1 Black, 150; Jackson vs. Leek, 19 Wend., 339; Thompson vs. Green, 4 Ohio St., 216; Tucker vs. Vance, 2 A. K. Marsh, 458; Chambers vs. Handley, 3 J. J. Marsh, 98.
    It has been held, however, that the wife must join. Bratton vs. Mitchell, 7 Watts, 113.
    At common law the husband’s interest iu the estates of which the wife was possessed, at the time of the marriage was a freehold, he alone having the right of entry and the present right of exclusive enjoyment. The wife could not recover the lands from a stranger, even though her husband was joined as defendant, and disclaimed title, and admitted the wife’s right to possession. Clark vs. Clark, 20 Ohio St., 128.
    Actual seizen is not necessary in order to entitle husband to courtesy. It is sufficient that the wife had title and a potential seizin or right of seizin — that is, the right to ■demand and recover the immediate possession. Bush vs. Bradley, 4 Day, 298; Kline vs. Beebe, 6 Conn., 494; Stoolfors vs. Jenkins, 8 S. & R., 175.
    The general rule is, that only persons may join in bringing •an action at law whose interests are joint or united. Hence on a joint demise the title proved must be joint, or the ..plaintiffs cannot recover. Taylor vs. Taylor, 3 A. K. Marsh, 19; Hoyle vs. Stowe, 2 Dev., 318.
    If one of the plaintiffs has no title the co-plaintiffs cannot •recover, even though they be vested with the whole title, for the joinder of too many plaintiffs is ground for non-suit on the trial, whether the action be for tort or on contract. Murphy vs. Orr, 32 Ill., 489.
    In trespass it is a settled rule that all the plaintiffs must he competent to sue, otherwise the action cannot be supported. . Marstellar vs. McClean, 7 Cranch, 156.
    In any event, if there was no courtesy, and the husband of the plaintiff (Dawson) could not have sued alone for possession, his wife must have him made plaintiff with her ; for, at common law, the wife had no right to sue alone at law in any case.
    The estate and interest of the husband of the plaintiff, Mary F. Dawson, was not, and could not be, affected by the Married Woman’s Act (April 10, 1869); it is true, the life -estate to Ann Hardy did not fall in until after the passage of that act ; but the estate to the devisees, the plaintiffs, was -a vested estate in remainder from and after the death of the testator, in 1842 ; the statute is not retroactive. Hart vs. Dean, 2 Mac A., 60.
   Mr. Justice Cox

delivered the opinion of the court.

This was an action of ejectment. The material facts of •the case are, that in making out title in ejectment, the plaintiffs relied upon a will executed by William Magill, in November, 1842, in which he says : “ I devise to Ann Hardy •part of lot one in square nine hundred and seventy-five, together with all the improvements thereon, during her •■natural life, and at her decease I devise said property to my three grandchildren, Angelica Fowler, James William White and Mary Frances White, them and their heirs forever.” The testator died in the year following the making of hie will, that is, in the year 1843, and the will was then admitted to probate. Ann Hardy, the life tenant, died in 1876. Just here it will be observed, that the title accrued originally to this plaintiff, Mary Frances White, now Dawson, by virtue of the will, as far back as 1843, before the-passage of the Mamed Woman’s Act of 1869, while it is true that she only got the property in possession in 1876, after the passage of the Married Woman’s Act. But as the title-was derived by her from this will in 1843, we think her rights in relation to the property are to be determined by the common law, and that the case does not come within the operation of the act of 1869. She and her co-tenants then instituted an action of ejectment, which is the case before us ; and at the trial it appeared that Mary Frances Dawson, one of the plaintiffs, had a husband, and also children of the marriage, living ; and the plaiutiffs having rested their case, the defendant, by his counsel, moved the court to instruct the jury that the plaintiffs had shown themselves out of' court, and not entitled to recover ■ in the present action because of the non-joinder of the husband of the co-plaintiff,, Mary Frances Dawson. The answer made to this by Mrs.. Dawson is, that she was a joint tenant ; that in case of her death the rights of the survivors would be paramount to any right as tenant by courtesy in her husband ; that he is ¿not entitled to courtesy in the property in which she is one of the parties interested, and has no interest in it, and therefore it is not necessary that he should join in the suit.

Now, all that may be very true, but there is really no question of tenancy by courtesy in the case The husband would not become such until the death of the wife. But independently of any question of title by courtesy, the husband has a freehold in the wife’s freehold property by the fact of' marrittge ; he has the exclusive right to the possession, and rents and profits of it, and that is equivalent to a freehold during the coverture. It is an interest that his creditor can seize upon execution, as was determined by this court in the case of Bank vs. Hitz, 1 Mackey, 111, and as is held in all the common law books. So that the husband, as a party interest, has the exclusive right to the wife’s freehold during coverture, although it is held in joint tenancy. Consequently, the wife does show that the property which is claimed here is really for the purposes of personal possession and enjoyment, in her husband, who is not a party to the suit. It is claimed that this objection should have been made by way of plea in abatement, and cannot be taken advange of at the trial. If it was a mere question of personal capacity to sue, that would be so ; the wife’s coverture should be pleaded in abatement. But it is a question of title. At the trial of the case, when the claimants try to make out their title, they show one-third is in another party, and consequently they cannot recover. It is therefore appropriate to the general issue to show that the title claimed by one of the female plaintiffs is in her husband and not in herself. We think the court below was right in ruling that the plaintiffs had shown themselves out of court by this proof, and the judgment is therefore affirmed.  