2 Allen 48, 84 Mass. 48

January, 1861

Suffolk County

No action can be sustained by a husband and wife jointly, to recover for the conversion of property which they claim under a mortgage executed to the wife alone, to secure money lent by her, a portion of which was furnished to her by her husband.

TORT to recover the value of a horse, wagon and harness, claimed by the plaintiffs, who were husband and wife, under a mortgage to the wife alone, in which the property was granted, bargained and sold to her " in her own right, free from the control of all persons," and attached at the suit of the defendant as property of the mortgagor. Patrick Hennessey has lived for several years in California, and sent money to his wife, which she

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lent to the mortgagor, and which was a part of the sum which the mortgage was given to secure. At the trial in the superior court, the defendant objected that the action could not be maintained in the joint names of the husband and wife; but Lord, J. overruled the objection, and the defendant alleged exceptions.

W. JF. Doherty, for the defendant.

B. Pond, for the plaintiff.

BY THE COURT. If the property sued for belonged to the wife alone, as her sole and separate property, under St. 1855, c. 304, or St. 1857, c. 249, the action should be in her name only, and the husband was improperly joined. If, however, the legal title to the property was in her husband, the action should be in his name only. But there is no aspect of the case, on the facts proved at the trial, in which an action can be maintained in their names jointly.

Exceptions sustained.