
    EMMA E. FISKE vs. JOHN G. BIGELOW.
    At Law. —
    No. 13122.
    I. At common law a married woman could not maintain an action m her own right, but the act of Congress regulating the rights of married women enables them to sue the same as if they were sole in regard to their separate estate.
    II. It is not necessary, though proper, to allege in her declaration, when she sues alone, that the subject-matter of the suit relates to her separate estate, or that she is a married woman. It will answer the requirements of the statute if these facts are disclosed by the evidence on the trial.
    III. Where the plaintiff commences an action to recover possession of premises under the landlord-and-tenant act, and the defendant interposes the plea of title in himself, it will be ho defense to such action that the plaintiff claims title under a deed executed at a sale of the premises by virtue of a deed of trust, even if there was a, defective . execution of a power of sale contained in such trust-deed.
    XV. A proceeding under the landlord-and-tenant act is not an action of ejectment, and the plaintiff may recover possession although ouly showing an equitable title.
    STATEMENT OE THE CASE.
    This was an action commenced before a justice of the peace, under chapter 19 of the Revised Statutes of this District, in regard to landlord and tenant. The plaintiff complained that certain tenements and premises known as No. 1540 Ninth street, in the city of Washington, were unlawfully detained from her by the defendant, whose estate as tenant therein had been determined by a notice to quit, in writing, of thirty days. The defendant pleaded title in himself, and the justice, in accordance with the requirement of the statute in such ease, returned all the proceedings before him to this court.
    On the trial of the cause the plaintiff offered in evidence her deed of the premises in question, from which it appeared, that she had purchased the premises at a sale under a deed of trust. The defendant objected to the deed, on the ground that the premises described therein did not correspond with those described in the affidavit accompanying the original complaint. Thereupon, by direction of the court, the plaintiff filed an amended .declaration, in which the premises were set forth correctly. To this amended declaration the defendant pleaded that the plaintiff, being a married woman, living with her husband, could not maintain her action without ioining her husband in the suit, as her declaration did not show that she had a separate estate which had been acquired from other sources than that of her husband. -The court sustained a demurrer to this plea. The defendant then filed three pleas—
    1st. Denying the unlawful detainer;
    2d. Averring title in himself; and
    3d. Averring that plaintiff’s only claim to the premises is by a void deed, which was obtained without consideration and in fraud of the defendant’s rights. The other facts-necessary to an understanding of the case are fully stated in the opinion of the court, and it is not necessary to repeat, them here.
    
      O. D. Barrett, for plaintiff, made and relied upon the following points:
    1. A married woman, without joining her husband as a party plaintiff, may maintain an action in her own name without averring in her declaration that she has sole and separate property, acquired from sources other than gift or conveyance, from her husband.
    This question has been considered by the supreme judicial-court of Massachusetts, under a statute similar to our statute on the same subject.
    The Massachusetts statute reads as follows: “A married woman may bargain, sell, and convey her separate real and personal property, enter into any contracts in reference to the same, carry on any trade or business, and perform any labor or services on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor, and earnings, in the same manner as if she were sole.” Gen. Stat. Mass., p. 538, part par. 3.
    The question arose in Massachusetts in the case of Hubert vs. Ferd, 99 Mass., 198.
    Thecourt say: “When a suit atlaw is brought by or against a married woman for a cause of action to which she is entitled, or for which she is liable under our statutes, it is not necessary to allege in the writ her marriage and thatthesubject-matter of the suit was her sole and separate property or services.’’ See also Van Buren vs. Swan, 4 Allen, 380; Robbins vs. Potter, 11 Allen, 588; 98 Mass., 532.
    2. A married woman, having no sole or separate property, can acquire such property by purchase.
    
    It is the transferring of the title of the property from its former owner to the wife that makes it her sole and separate property. .
    The consideration she may give for it, whether in money or in her own obligations, has nothing to do with the vesting of title in her. The validity of her obligation given for real estate has been seriously questioned and carefully considered by the courts, resulting in the affirmance of their validity. Stewart vs. Jenkings, 6 Allen, 300; 10 Allen, 96. Such a deed under the old law vested the title in the wife, but limited her rights in the property to the same extent it gave the husband an interest in it. The present law gives the husband no rights in the property and imposes no restrictions on the wife. The equitable title to the property became vested in the plaintiff by the assignment from Gilman to her. What the consideration given to Gilman was does not appear, nor the name of the party who paid it. It may have been a gift from Gilman.
    The case in point is, therefore, that of a married woman having acquired the equitable title to a piece of property from a party other than her husband, subject to an incumbrance of $5,000, all of which she has paid off, as set forth in the record.
    
      
      William B. Hawes for defendant:
    As the plaintiff sought to recover upon her deed from the trustees, it was incumbent upon her to show that they had fully conformed to the requirements of the trust reposed in them, before she could claim that such a legal relation existed between herself and the defendant as to enable her to sustain this action. The property sold by the trustees was bid in by Virgil C. Gilman, and he instructed the trustees to deed the same to the plaintiff upon her complying with the terms of sale. Gilman would be compelled to comply with the published terms of sale before he would be entitled to a deed. If Gilman could make the assignment at all, as stated on page 8 of exceptions, he could make it only upon the express conditions upon which he made the purchase himself; and a deed to Gilman or his assignee, without a full compliance with the requirements of the trust, would be void. U. S. Dig., vol. 1, 718; Hunt vs. Townsend, 31 Md., 336; Mills vs. Taylor, 30 Tex., 7; Young vs. Van Benthuysen, 30 Tex., 762.
    And especially is this the law, for the reason that there is no equity of redemption after foreclosure and sale. When the trustees have made sale of the grantor’s property, they have wholly divested him of all title to the premises, including his right to redeem. Kinsley vs. Ames, 2 Met., 29; Eaton vs. Whiting, 3 Pick., 484; Turner vs. Johnson, 10 Ohio, 204; Bloom vs. Van Rensselaer, 15 Ill., 503; Jackson vs. Henry, 10 Johns., 185. And because this is so, unless all the essential requisites of the power contained in the deed of trust are complied with, the sale will pass no title to the purchaser. Ormsby vs. Tarascon, 3 Litt., 404; Joy vs. Gilbert, 2 P. Wms., 13; Mills vs. Banks, 3 P. Wms., 1.
    To maintain this action, the plaintiff must have the legal in contradistinction to the equitable title. Gilmer vs. Poindexter, 10 How., 257. A court of law in general recognizes only the legal owner of property; and every action that is founded on the legal title must be brought by or in the name of the party in whom that title is vested, Mordecai vs. Parker, 3 Dev., 425. Such party must sue in ejectment. Cox vs. Walker, 26 Maine, 504; Matthews vs. Ward, 10 Gill & Johns., 443; Beach vs. Beach, Vt., 28; Wright vs. Douglass, 3 Barb., 559; Moore vs. Burnett, 11 Ohio, 334, But the plaintiff, in her evidence, testifies that she gave two deeds of trust on this property, one for $2,000 and the other for $2,500, as. part of the purchase-money. If she acquired a good legal title by the assignment of Gilman of his purchase at the sale, and from the. conveyance of the trustees, dated February 1, 1874, as set forth in the bill of exceptions, pp. 6 and 7, she simultaneously parted with such title in conveying the same to her trustee or trustees, to secure the purchase-money, and she had not at the commencement of this suit nor has she now a legal subsisting title, such as the law requires to maintain this action. The demise must be laid in the name of her trustee, in whom the legal estate is outstanding, or she must fail in this action. Goodlittle vs. Jones, 7 T. R., 17; Carroll vs. Nomoood, 5 Har. & Johns., 155; Burton vs. Austin, 1 Vt., 105; Redman, vs. Sanders, 2 Dana, 68; Swazee vs. Burke, 12 Pet., 11; Bagnell vs. Broderick, 13 Pet., 136; Finley vs. King, 3 Pet., 347; Fenn vs. Holme, 21 How., 881; Hooper vs. Scheimer, 23 How., 235; Sheirburn vs. Cordova, 24, How., 423; Carson vs. Boudinot, 2 W. C. C., 33; Smith vs. McCann, 24 How., 398.
   Mr. Justice MacArthur

delivered the opinion of the court:

It appears from the bill of exceptions that this was an action under the statute to regulate proceedings between landlord and tenant, and, the defendant pleading title in himself, the case was certified to this court. It also appears that, on the 1st day of November, 1871, Arthur W. Fiske, who is the husband of the plaintiff, owned the premises in dispute, and on that day gave, with his wife, a deed of trust thereon to B. H. Warner and George W. Stickney, to secure the payment of a note, made by the said Arthur W. Fiske ta Hugh Gaperton, for the sum of $3,000, due in two years from such date.

Seven days later, i. e., November 7,1871, Fiske and wife, by their deed, duly, executed, conveyed to the defendant the, same premises in consideration of $6,000, subject to the afore■said deed of trust, the payment of the note secured thereby being assumed by the defendant.

The said note not being- paid at maturity, the premises were advertised and sold at public auction to one Yirgil C. Gilman, for $5,000. Gilman transferred all his interests in the property to the plainti £f by a written assignment, directing the trustees to make and deliver the deed to her, which was done. Up to this time the plaintiff had no separate property, and she procured the money to make the payments to the trustees by executing new deeds of trust on the property for an aggregate of $4,500, her husband signing the notes with her, and giving her own note to her husband for the remaining $500. In this way she had paid the purchase-money in full to the trustees and secured the deed. Such is ■substantially a statement of her title.

On the other hand, the defendant asserts in his plea that he is the owner in fee of the premises, and that the plaintiff has no title whatever except by virtue of the conveyance made to her at the trustee’s sale, which he claims to be void. The evidence shows that Gilman bid off the premises, and that he requested the trustees to settle with the plaintiff and deliver her the deed, which they did upon her complying with the terms of sale. The defendant also read in evidence the •deed of the property which the plaintiff and her husband had executed to him on the 7th of November, as previously stated. He also called as a witness the plaintiff, who testified as follows : I am the wife of Arthur W. Fiske, heretofore sworn in this case. I am the owner of this property. I bought this property of Mr. Gilman on speculation. I gave my note to my husband for $500 as part of the purchase-money. The balance was raised by two deeds of trust on this property, •one for $2,000 and the other for $2,500. My husband signed these two notes with me. I have no separate estate of my ■own, and never had any. My husband raised the money on these two deeds of trust.”

The plaintiff then offered evidence as to the value of the rent of the premises during the prosecution of this suit, whereupon the jury returned the rental value of said premises at $35 per month for the term of thirteen months.

The court instructed the jury to find a verdict for the plaintiff, to which the defendant excepted.

The record shows that the defendant had filed a plea at a former term of the court below, to the effect that the plaintiff, being a married woman, cannot maintain this action in her own name, because her declaration does not show that she has a separate estate acquired from other sources than that •of her husband. To this plea a demurrer had been interposed and sustained by the court. We will dispose of this point first: At common law a married' woman could not maintain an action in her own right without joining her husband in the suit with her, but the act of Congress regulating the rights of married women in this District enabled a married woman to maintain an action the same as if she were sole in regard to ‘ her separate estate. Kimboo vs. Bank, 1 MacA., 51. Nor do we think that it is necessary for her to allege in her declaration that the subject-matter of the suit relates to her separate estate and that she is a married woman. It will answer the requirements of the statute if these facts are disclosed at the trial. This is the settled construction of the corresponding statute in Massachusetts. The demurrer was properly overruled. Van Buren vs. Swan, 4 Allen, 380; Hubert vs. Fera, 99 Mass., 198.

The defense that the plaintiff claimed the premises under a void deed is inadmissible for the purpose of defeating this action upon the facts of the case. The consideration given by her for the premises in question, and paid in full, was 85,000. The property was sold under a deed of trust because the note secured by it was not paid by the defendant, who had assumed its payment when he took the property subject to that incumbrance. It is true that Gilman bid the premises off and assigned his interest to the plaintiff, but it is equally true that she has paid the purchase-money, complied with the terms of sale, and received the deed from the trustee. There is no evidence here tending to support the defense, and even if there was a defective execution of the power of sale, it is a matter which can be more satisfactorily examined in a court of chancery, where the proper parties can be heard and the equities of all protected.

The objection that the plaintiff is vested only with the equitable title to the property does not lie to an action of this kind.

The counsel for defendant has cited many cases which show that in an action of ejectment the plaintiff will fail unless he is vested with the legal title. This proposition will not be denied, and is in full accordance with what we understand to be settled law. But the present is not an action of ejectment. It is a proceeding furnished the landlord by statute for the very purpose of a more speedy remedy. Inasmuch as the case only comes here for trial according to section 687, Revised Statutes, when the u defendant pleads title ” in himself, it would seem as if the defendant could only sue-. ceed when he had a title in his own right.' Although it has been incidentally suggested by some of the judges of this court that a form of pleading might be adopted similar to that in ejectment, it was as a matter of convenience, and without designing to assimilate the proceeding to the technical rules which govern that action. We do not feel called upon to embarrass a proceeding which was intended for a special contingency by converting it into the most technical form of action known to our jurisprudence.

The judgment below must be affirmed.  