
    HARLEY a. RITTER.
    
      New York Common Pleas;
    
      Special Term, November, 1859.
    Pleading.—Separate Answer oe Married Woman.
    A married woman may put in a separate answer, without leave of court, in an action respecting property which she claims as her separate estate.
    Motion to strike out answer as irregular.
    This was a creditor’s action, brought by the plaintiff against John Bitter, the judgment-debtor, Sarah his wife, and one Palm. The complaint charged that Bitter conveyed certain real property to Palm without consideration, and that Palm conveyed it to Sarah Bitter, the wife, without consideration, and that the conveyances were fraudulent as against creditors; and it sought judgment setting aside the conveyances, and applying the property to payment of plaintiff’s judgment; with the usual prayer for a receiver and an injunction.
    
      All the defendants retained the same attorney, and the defendant Sarah Ritter put in a separate answer without having obtained leave of court. Her answer admitted the conveyances alleged in the complaint, but denied that they were without consideration or fraudulent; and alleged that the sole and only consideration paid by her upon the conveyance was of her own means, which she had prior to her marriage, and which she had always kept separate and distinct from any money of her husband ; and insisted that the premises in question were her separate estate, and ought to be free from the debts of her husband. The answer was verified by herself.
    The plaintiff declined to receive it on the ground that it was irregular, in being made without leave of caurt first obtained on notice; and he now moved, on that ground, to strike it out.
    
      Isaac S. Bryan, for the motion.
    
      J. F. Mills, opposed.
   Brady, J.

It is a general rule in equity, that in a suit against husband and wife, the husband must procure the joint answer of himself and wife to be put in; and if either party wishes to answer separately, an order should be first obtained allowing it. (1 Barb., 150 ; Leavitt a. Cruger and wife, 1 Paige, 421 ; New York Chemical Company a. Flowers and wife, 6 Paige, 654 ; 1 Smith, 252.)

It is stated by Smith, however, on the same page cited, that a wife is entitled to put in an answer separately from her husband, on three grounds : 1. If the husband and wife are made defendants in right of the wife ; 2. If the husband and wife live separate and apart; 3. If the husband is out of the jurisdiction; and that, though an order is necessary to allow the separate answer, it will be granted as matter of course, on motion or petition predicated of either of the grounds above-mentioned. The cases above cited from Paige were foreclosures, and, under the Code, I have not been successful in finding but three cases bearing upon the question suggested. (Erickson and another a. Vollmer, &c., 11 How. Pr. R., 43; Youngs a. Seeley and wife, 12 Ib., 395; Arnold and others a. Ringgold and wife, 16 Ib., 158.)

In the case of the 11 Howard, the action did not concern the separate estate of the defendant’s wife. The object of the action was to set aside a conveyance executed by the defendant, the wife having only an inchoate right of dower. In Youngs a. Seeley and wife, the action was brought to set aside a conveyance to her as fraudulent and void. Her husband was united with her, and put in an answer which was not verified by her. It was held that the answer should have been verified by her; that if the deed was valid, the plaintiff had no claim in the premises, and that her right under it would amount to a separate estate, which she would have a right to dispose of, under the statutes of 1848 and 1849, independently of her husband. The statutes of 1848 and 1849 have enlarged the rights of married women in reference to the ownership and possession of real estate ; but, by the usages and laws of the colony and State of Hew York, a married woman could convey her lands, or any interest therein, by deed, although her husband ‘did not join therein. (Albany Fire Insurance Company a. Bay, &c., 4 Cow., 1.) And she was regarded in equity as a feme sole, in reference to her power over her separate estate. Taking into consideration the independent position of a married woman in this State, as to her separate property, there seems to he no reason for adhering to the rule in equity which requires leave of the court to be obtained before a separate answer can be put in by a feme covert, where the action is not based upon any instrument jointly executed by herself and husband, and where, as in this case, she claims an exclusive right to the estate sought to be appropriated to the payment of her husband’s debts. Having the power to hold her separate estate as a feme sole, she should be permitted to defend her title in that capacity, and to enjoy, as other suitors, all the privileges and rights pertaining to courts of justice— not as a favor, but as an absolute right. In one case, in this district, the right of a married woman, sued' in reference to her separate estate, to demur separately without leave of the court, has been decided. (Arnold, &c., a. Ringgold, &c., supra)

By section 114 it is provided, that when a married woman is a party, her husband must be joined with her, except in cases where the action concerns her separate property, and where the action is between herself and her husband. It follows, therefore, that in actions against a married woman, in reference to her separate estate, the husband must be joined, and that the husband is made a defendant in risrht of the wúfe. As we have seen, in such cases, the wife may answer separately, as matter of course, on application. (1 Smith, 252, supra.)

The Code (§ 157) provides, that if there he several parties united in interest and pleading together, the verification to the pleading may he made by one of such parties acquainted with the facts. In this case the husband and wife are not united in interest, and a verification, by the husband, of a joint answer, would not be sufiicient. (Youngs a. Seeley and wife, supra.)

It thus appears that the wife holds her separate property as if she were a feme sole; that when sued in reference to it, although her husband must be joined with her, an answer put in by him for her would not be good without her verification, and that in cases where the husband is joined as a defendant in right of his wife, she may answer separately, as matter of course, if she apply for leave to do so." However harmonious with the old practice, which originated during the existence of the more severe legal doctrines in relation to a married woman, her estate, and her being, there seems to be no reason for the longer continuance of the rule requiring her to ask leave of the court to answer, when the action concerns her separate estate; and, in my opinion, such a rule would not only impose the performance of an idle ceremony, but would impair her right to enjoy and protect her separate estate, in the manner, and to the extent and purpose designed by the Legislature. And I think as well, that it would not be in accordance with the spirit of the Code, which was to “ simplify,” as well as “ to abridge the practice, pleadings, and proceedings of the courts of this State.” For these reasons, the separate answer of the defendant, Sarah Bitter, was, in my judgment, properly made in this case, and it is my opinion that the motion to strike it out should be denied; but, as the question is novel, without costs to either party.

Order accordingly.  