
    William Clark v. Elizabeth Clark, and Edward B. Clark.
    1. Lands conveyed to a married woman prior to the taking effect of the act of April 3d, 1861, “ concerning the rights and liabilities of married women,” by deed containing no words importing her separate estate therein, do not by virtue of said act become the separate estate of the wife,
    
      2. During coverture the right of possession of such lands is in the husband, and the wife cannot maintain an action to recover the same from a stranger.
    3. In such action by the wife, the husband, being made a mere nominal defendant therein, cannot, by his answer in the case, disclaiming title, and admitting the plaintiff’s right of possession, divest himself of title, and thus enable her to recover in the action.
    4. It is not error in the court, where the action has been so brought against the husband as well as the party in possession, to overrule the plaintiff’s motion for leave to amend her petition so as to make the husband co-plaintiff, instead of defendant, and laying the right of action in him in stead of the wife.
    5. Motions for leave to amend are addressed to the sound discretion of the court, and their refusal will not be held to be erroneous unless it is affirmatively shown that the discretion was abused.
    Error to the district court of Ross county.
    The original action was brought by Elisabeth Clark, by her next friend, against William Clark and her husband Edward B. Clark. She alleged in her petition that she had an estate and right of possession in and to certain real estate described therein, and that said William Clark'wrongfully kept her out of possession of the same. She prayed for the recovery of possession, and also for a judgment against William Clark for rents and profits. She made no complaint against her husband Edward B. Clark, and prayed for no relief against him, making him a mere nominal party.
    William Clark, by his answer, among other things, denied the plaintiff’s right of possession, and alleged that the right of possession was in her husband.
    Tiie husband answered admitting the wife’s separate estate and right of possession, and disclaiming any right or estate in himself.
    On the trial the plaintiff offered in evidence her claim of title. Her husband Edward B. Clark having been the owner of the real estate in controversy, conveyed it by deed dated February 2d, 18G0, to Francis S. Parker; and the latter, by deed of same date, duly executed, conveyed the premises to Elizabeth Clark, the plaintiff, in fee; the date of this deed being prior to May 1,1861, the time of the taking effect of the “ act concerning the rights and liabilities of married women,” passed .April 3,1861 (S. & S. Stat. 389). The deed from Parker to the plaintiff contained no words making the property her separate estate, oi in any way freeing it from the control or rights of her husband. This deed, on objection thereto by the defendant William Clark, was rejected by the court, on the ground that it showed present title and right of possession in the husband and not in the plaintiff. To this ruling she excepted.
    The plaintiff then moved the court for leave to amend her petition by mailing her husband a co-plaintiff with her, instead of a defendant, and laying the right of action,in him instead of herself. This motion was overruled, and the plaintiff excepted.
    The plaintiff having no other or further evidence, a verdict and judgment wore rendered against hei*.
    To reverse this judgment Mrs. Clark prosecuted her petition in error in the district court, assigning for error, (1) the rejection of said deed, and (2) the overruling of her motion for leave to amend.
    The district court reversed the judgment, for the alleged reason that the common pleas erred in so refusing leave to amend. And to reverse this judgment of reversal, the present petition in error is filed.
    
      
      Alfred Yaple for plaintiff in error:
    1. The ruling of the court of common pleas refusing to allow the deed to Elisabeth Clark to be given in evidence to establish the right of possession in her, was correct.
    Ey the law of Ohio in force when that deed was made (being previous to the passage of the Key statute) if the wife was seized of an estate of inheritance in lands, the husband, by marriage, became seized of the freehold jure uxoris, and he took the rents and profits during their joint lives, with the inchoate right to become tenant by the courtesy in case he should outlive her. Dunseth v. Bank of U. S., 6 Ohio, 76, 77; Thompson’s Lessee v. Green's Heirs, 4 Ohio St. 216; Ford’s Lessee v. Langel, Id. 464; Canby’s Lessee v. Porter 12 Ohio, 80.
    Where the wife obtains a title, in fee, during the marriage to real estate, the rights of the husband therein must be determined alone by the laws in force when the wife acquired such title, and no subsequent laws can divest the husband of his vested estate, the legislature having no such constitutional power. Jenny et al. v. Gray, 5 Ohio St. 48.
    So the Key statute of 1861 cannot affect this case.
    The question then was — what estate did Edward E. Clark take in these lands of his wife (if she had a good title thereto) by the deed to her, of date of February 24, 1860?
    By the law of Ohio he then became vested with an estate for the joint lives of himself and wife, a freehold estate. Thompsons Lessee v. Green’s Heirs, 4 Ohio St. 216, and the cases there and above cited.
    
      “ The husband having a freehold in the lands, with the present right of exclusive enjoyment, and the wife or her heirs -only the reversion, the former has the only right of entry.” Thompson’s Case, supra.
    
    So the question is induced to this: Can a plaintiff, in an action to recover the possession of real estate, under section 558 of the code, recover an estate in reversion, another having the present right of exclusive enjoyment, at least for the joint lives of the plaintiff and the owner of such freehold?
    To maintain the affirmative would be absurd.
    
      That such estate of the husband is a freehold and makes him a freeholder, see 1 Bouv. Law Dic., titles “ Freehold Estate,” “ Freeholder,” and Thompson’s Case above cited.
    2. The court was, then, clearly right in refusing to allow the plaintiff to recover upon this deed, unless her husband’s answer admitting the statements contained in her petition, gave to her the legal right to recover against the defendant
    The record does not show that there was any evidence offered by the plaintiff to prove that her husband’s admission in his answer was true. The deed showed that his answer was not true. As evidence, against the defendant, of a legal title in the wife (and she could only recover upon a legal title), the answer of the husband was wholly incompetent. It possessed none of the requisites required by our laws to convey the lands to her, such as grant by deed, acknowledgment, etc.; and even a deed from him to her would have been void, as the answer contains no pretence of consideration. Fowler et al. v. Trebein et al., 16 Ohio St. 493.
    It is not necessary to discuss what the status of the case would have been if the conveyance from Edward B. Clark to Francis S. Parker had been a deed in trust for the wife, of the land as her separate estate, and Parker as such trustee had conveyed to her. Nothing of the kind is shown by the record.
    3. The decision of the common pleas refusing to allow the plaintiff to amend her petition by making her husband a co-plaintiff, is a matter which a higher court cannot review on error.
    The record does not show any of the circumstances which induced the court to deny the motion. It is to be presumed that the court did its duty, unless the contrary appear. Error must appear on the face of the record, or it will bo presumed that there is none. Johnson v. Mullin, 12 Ohio, 10.
    If the amendment had been allowed and made, it would have changed substantially “ the claim” made against the defendant, and was not allowable under that section of the code which provides that an amendment cannot be made when it “ changes substantially the claim or defence,” etc.
    
      The husband and wife were not jointly entitled to the estate recoverable in the action, nor to the rents and profits, but the husband alone.
    
    Under section 137 of the code, as before the code, “amendments, when proper, are a matter of discretion, to be granted or refused, according to the dictates of a sound legal judgment.” Kemper v. Trustees of Lane Seminary, 17 Ohio, 293, 329. And to refuse an amendment is never a ground for proceedings in error; neither is the granting of an amendment, except where the law does not give the court the power to grant it; in which case only it is not “ proper ” in the legal sense, when brought for review before a higher court. French v. Stanley, 21 Maine, 512 ; Walden v. Creig, 9 Wheaton, 576; Chiroc v. Reiniher, 11 Wheaton, 280; 6 Cranch, 206 ; 1 Mason, 153; Conkling’s Treatise (4th Ed.), 631.
    But the matter decided by the common pleas was more a question of parties than of amendment, the object sought by the amendment being to get a new party plaintiff in whom the outstanding legal title was shown to be, and which fact was a complete defence to the plaintiff’s action. Section 40 of the code expressly authorized the court to determine the question between the plaintiff and the defendant William Clark, and such determination could not prejudice the rights of Edward B. Clark. All his rights were saved.
    
      Milton L. Clark, also for plaintiff in error:
    1. The original action was misconceived. When it was brought, plaintiff’s counsel supposed that the case would be governed by the Key statute of 1861. But before that statute, if plaintiff below acquired any title at all by the deed offered and ruled out, it vested a freehold estate in the husband, with the exclusive right of possession. The statute could not divest it. 6 Ohio, 76, 77; 4 Ohio St. 216, 464; 12 Ohio, 80; 5 Ohio St. 48.
    When the plaintiff showed the right of possession out of herself, she was out of court. The admission in her husband’s answer amounted to nothing. The title to real estate cannot be passed in that way. The case had to be tried upon the facts as they existed at the commencement of the suit, sa far as William Clark was concerned, and not upon anything that might be eked out of the answer of an improper defendant hostile to him.
    2. The common pleas did not err in refusing to allow the amendment to be made. The amendment would have made a new case.
    3. The motion for leave to amend was a matter addressed to the” discretion of the court, and its decision thereon was not reviewable upon error. But if the discretion was a legal one and reviewable, it could not bo done in this case for want of a bill of exceptions disclosing all the circumstances under which the amendment was refused. Rabb’s Estate, 16 Ohio St. 279.
    
      Henry F. Page for Mrs. Clark, defendant in error:
    The district court did right in reversing the judgment of the common pleas, though they did it, as I think, for a wrong reason. That judgment ought not to have been reversed on the ground that leave was refused plaintiff to amend. It ought to have been reversed because the common pleas erred in holding that the land in the petition described was not the plaintiff’s separate estate. There were two facts in the record that showed conclusively, that the land was her separate estate.
    1. The property sued for was the separate estate of the wife of E. B. Clark, for the record showed that he had no interest in it, and asserted no claim to it. If he ever had any interest in the land, by virtue of the deed to his wife, yet that interest was gone iu consequence of his disclaimer on the record.
    
    It is competent for a person to disclaim title to land by deed or matter of record. Butler and Baker’s Case, 3 Coke’s Rep. 26; Townson v. Sickell, 3 B. & Ald. 3 (5 Eng. Com. Law, 221); Beybie v. Cook, 2 Bingham, N. C. 70 (29 Eng. Com. Law, 259); Shepherd’s Touchstone, 218; Nicholson v. Wadsworth, 2 Swanston, 365-370, where all the cases are cited; Smith v. Wheeler, 1 Ventris, 128 ; 2 Id. 198; 4 Leonard, 207; Hawkins v. Kerop, 3 East E. 410; Anonymous case in Mosely, 248; Clancy on the Eights of Married Women, p. 595, chapter 12, book 5; Mitford’s Pleading, 318 (388).
    It was not competent for William Clark, a trespasser and wrong-doer, to question the disclaimer of the plaintiff’s husband. 2 Bla. Com. 275-6; 9 Mass. 352; Futzs Appeal, 40 Penn. St. 90; Frary v. Booth et al. (Vermont), 4 Ana. Law Reg. N. S. p. 142; Hoop v. Hoffman, 14 Ohio St. 448; Hilleyass v. Hilleyass, 5 Penn. St. 97; Curtis v. Gidver et al., 1 Allen, 215.
    William Clark cannot be injured by this disclaimer. It is not possible for him to be sued by E. B. Clark in another action, for he is forever estopped by his disclaimer’. 56 Penn. St. 35.
    2. The deed from Edward B. Clark to Parker and the deed from the latter to the plaintiff being of the same date, are to be construed together and as one transaction. Stover v. Stover, 9 Serg. & Rawle, 434; Colwell v. Woods, 3 Watts, 188.
    These deeds show, of themselves, that Clark conveyed this land to his wife, and that makes it her separate estate. Tiffany and Bullard on Trusts, etc., 669, and cases there cited.
    3. As to the question of amendment. At common law, where there is no statute on the subject, the granting of an amendment is matter of mere discretion, and the exercise of that discretion cannot be impeached or controlled by a bill of exceptions or a writ of error. The cases cited by counsel for plaintiff in error are all cases at common law. But where there is a statute authorizing amendments, a different rule prevails.
    In Mississippi it has been held that, in respect to amendments, the statute is imperative upon the judges to allow them, and that it is not a matter of discretion to refuse them when requested. Wharton v. Porter, 10 S. & M. 305; Dent v. Coleman, 10 S. & M. 83; Whitfield v. Woodbridge, 
      23 Miss. 183. The same rule has been laid down in Texas. 13 Texas, 349 ; Bennett v. Gamble, 1 Texas, 124; and also in Iowa, 7 Clark, 423.
    It seems to me this is the rule that should be adopted under the code.
    But in any event an abuse of judicial discretion in regard to amendments is reviewable on error. It is not necessary to cite cases’ on this point.
    Did not the common pleas abuse its discretion in refusing the amendment? Was not the amendment in furtherance of justice?
    It is said the husband and wife cannot join in ail action of ejectment, and the case of Thompson's Heirs v. Green, 4 Ohio St. 216, is cited. But, according to the definition given in that case, of ail action of ejectment, the original action in the present case is not an action of ejectment. That action, with all its peculiarities, has been abolished by the code. The action under the code is for the recovery of the seizin or the freehold. Does the principle laid down by the court in the case in 4 Ohio St. apply to an action under the code ? It would seem not, from the case of Plum v. Robinson et al., 13 Ohio St. 298: Where lands of a married woman have been sold for delinquent taxes, she may, in conjunction with her husband, institute proceedings to redeem at any time during the coverture.”
   Welch, J.

It is quite clear to us that the judgment of the district court cannot be maintained upon the ground on which it is placed by that court, namely, that the common pleas erred in refusing leave to amend. This is now conceded by counsel for defendant in error. Motions for leave to amend are addressed to the sound discretion of the court and their refusal cannot be assigned for error, unless, at least in cases where the record sets out all the facts bearing upon the question; and shows afiirmatively that there has been an actual abuse of discretion. Such is far from being the case here. In the first place, to say the least, it is doubtful whether the court had power to allow the amendment asked, which was, in fact, a motion for leave to make a new case. But conceding the power, we can readily imagine circumstances rendering its exercise in the case improper; and in the absence of a bill of exceptions setting forth the contrary, we are bound to presume the existence of such circumstances. Every reasonable intendment must be made in support of the judgment.

But counsel contend that the common pleas erred in rejecting the deed offered by the plaintiff, and that, therefore, the judgment of the district court was right, although that court based it upon a wrong reason. We think the deed was properly rejected. It showed a right of possession in the husband, and not in the wife. It contains no words limiting the rights of the husband, or giving the wife a separate estate. It was executed prior to the date of the act of April 3, 1861, known as “ Key’s Act,” and the rights of the husband under it stand unaffected by the provisions of that act. Under this deed the husband has an inchoate estate of courtesy in the land, with the right of present possession. 0£ this he cannot divest himself by an answer in the case. No such inode of conveyance is known to our laws. And even if he could thus divest himself of title, his answer comes too late to avail the plaintiff, for the reason that her case must be determined upon the rights of parties as they existed at the commencement of her action.

The judgment of the district court must be reversed, and that of the common pleas affirmed.

Brinkerhoff, C.J., and Scott, White, and Bat, JJ., concurred.  