HIRAM LEONARD, and SIDONIE LEONARD his Wife v. JAMES B. TOWNSEND and JAMES DONAHUE, 26 Cal. 435

By the Court, Sanderson, C. J. This is an action by a husband and wife to recover a lot in the City and County of San Francisco, alleged in the complaint to be the separate estate of the latter. The case was tried by a referee, to whom it was referred with directions to try all the issues, both of law and fact, and report a judgment thereon.

The referee reported a finding and judgment in favor of the defendants, and thereupon the plaintiffs moved the Court to set aside the report of the referee and grant a new trial upon the ground, in substance, that upon the facts as found by him the judgment should have been for the plaintiffs. By stipulation the report of the referee was made a statement of the case upon the motion for a new trial. The motion was denied, and the plaintiffs have appealed.

It appears from the finding of the referee that the plaintiff, Sidonie Leonard, then being the wife of the plaintiff, Hiram Leonard, in 1853 brought an action, as sole plaintiff to recover the premises in controversy in the present action, against certain other parties then in possession. In that action she recovered judgment. This judgment was, however, reversed on appeal and a new trial ordered. The case was remanded to the District Court and placed on the calendar for that purpose.

On the day appointed for the trial the plaintiff failed to appear and prosecute her action, and upon motion of the defendants it was dismissed at her costs. In due course the costs were taxed and judgment therefor entered against her. Upon this judgment execution was issued, and the premises which were in controversy in that action and in this were levied upon and sold to the defendant Townsend, who in due course obtained a Sheriff’s deed therefor.

Upon the foregoing facts the referee held that the title of the plaintiff Sidonie Leonard passed to the defendant Townsend by the execution sale and Sheriff’s deed, and accordingly rendered a judgment in favor of defendants. The validity of the judgment under which the" Sheriff’s sale to Townsend was made is the only question involved in this case. It is contended on the part of the appellants that the judgment in question, and all the proceedings thereon, including the Sheriff’s deed, are null and void, because, Mrs.

Leonard being a married woman and not a sole trader, no valid judgment for costs could be rendered against her. In support of this point the learned counsel for appellants have filed an able and ingenious argument, founded upon the principles of the common' law touching the rights and disabilities of married women and the claim that those” principles, so far as the question under debate is concerned, are unaffected by our Practice Act.

As we understand the argument, it is to the effect that our statute removes the common law disabilities of married women, so far as their capacity to sue in certain cases is concerned, but does not annex to that capacity the liabilities which are imposed by the statute upon all other suitors.

We do not think that the solution of the question under consideration is aided by a reference to the common law; for assuming all that is claimed by appellants on that score the whole question still remains, which is simply whether (admitting that she can maintain the action only by virtue of the statute) she enjoys the right to sue upon the same terms and conditions as all other suitors, or enjoys' it unincumbered with the liabilities which its exercise may entail upon them, and is to be solved in our judgment by a reference to the statute alone.

Title one of the Practice Act treats of civil actions and the parties thereto, and in the seventh

section provides in what cases a married woman may sue and be sued, without imposing any conditions or bestowing any privileges. Thus, in respect to the cases mentioned, she is put upon a common level with all other parties to actions, no discrimination being made in her favor or against her. Thereafter the statute proceeds, and without any distinction as to persons, prescribes in general terms, applicable to all alike, the manner in which actions shall be prosecuted and the nhture and form of the judgments which shall be rendered, and the manner in which the same shall be executed.

We nowhere find any provision excepting any party or class of parties, from the operation of any of these general rules. The provisions of the statute relating to judgments do not declare that judgments may be rendered in favor but not against married women; on the contrary, they merely provide in general terms when the plaintiff or the defendant shall have judgment and execution regardless of the fact whether they are male or female, married or unmarried.

All the property of the judgment debtor, except as otherwise provided, regardless of the fact whether such debtor be male or female, married or unmarried, is declared subject to seizure and sale under execution. Thus we find in the statute no foundation upon which the theory of the appellants can stand, for it deals in general terms, and creates no exceptions in favor of any party or class of parties.

The provision of the Practice Act, allowing a married woman to sue alone is not, as counsel for appellants contend, merely the adoption of the old chancery rule allowing her in certain cases to sue by her “ next friend.” It is something more, for it allows her to sue alone. The office which the prochein ami performed was to be responsible for costs.

The old form of suing by prochein ami is abolished, but the right of the opposite party to recover costs is unimpaired, and, as a necessary consequence, resulting from dispensing with the prochein ami, the married woman has herself been charged with the responsibility which previously attached to him; and therb is no good reason why it should not be so. If she is to be regarded as a feme sole for any purpose connected with litigation, she ought to be so regarded for all.

There is no justice in according to her all the advantages and benefits to be gained by an action, and at the same time exempting her from all risk and responsibility. If she is to be allowed the rights of a suitor, she must, in the absence of an express provision to the contrary, be held to take also the responsibilities of a suitor, for they ought not to be separated. So far as we know, this precise question has not before arisen in this State; but a question somewhat analogous arose in Alderson v.

Bell, 9 Cal. 321, where the Court said: “In this State the wife can appear in and defend an action separately from her husband. To enable her to do so, she must possess, as defendant, all the rights of a feme sole, and be enabled to make as binding admissions in writing, in the action, as other parties.” But the question has arisen in New York, from which State our system is borrowed, and has been there determined in accordance with the views entertained by us. In Moncrief v. Ward, New York Com. Pleas (reported in note to Baldwin v. Kimmel, 16 Abbott’s Prac.

R. 364,) this same question was involved, and it was held that an execution for costs against a married woman could be enforced against her separate estate, whether it contains a direction to that effect or not. Mr. Justice Brady said: “ Having the right to sue, the power must be employed cum onere. The statute awarding costs does not exempt a married woman, either as plaintiff or defendant, from the payment of costs when unsuccessful. There is no just reason why she should be thus exempted.

Having the status of a feme sole in the Courts, if she fail in her action it would be unjust to compel her adversary to resort to extraordinary modes to collect his costs. It cannot be that the Legislature intended this. It is true that, until the amendment of the code (Sec. 274) in 1862, the Legislature did not in express terms provide that costs could be recovered against her, but such was the effect of the statutes then in existence, as I interpret them.

That amendment merely declared the necessary legal conclusion from the existing statutes; no class of suitors, as already suggested, having been excepted from them. The execution to compel the payment of such costs must be enforced against her separate estate, whether so directed or not.

It cannot be employed against the property of another person per se” But it is insisted on the part of the appellants that the foregoing case has no authority in this State, because the language of the New York statute is different and broader than ours, and vests a married woman, to a great extent, with all the powers and liabilities of a feme sole touching her separate estate. We are not able to perceive the difference between the two statutes claimed by counsel.

The New York statute provides that she may sue or be sued “in the same manner as if she were soleby ours she is authorized to sue or be sued “ alone.” We think the two expressions are equivalents. The effect of both is the same. Each removes the disability of coverture, and nothing more. By the laws of Pennsylvania the property of a married woman is now kept as her separate estate, as in this State, and she is authorized to sue for it in her name alone. In the case of Goodyear v. Bumbaugh and Wife, 13 Penn. St. R. 480, the husband and wife joined as plaintiffs to recover the wife’s separate realty.

It was objected that the husband was misjoined. The Court said : “ We see nothing in the exception of which the defendant can complain. He has two, instead of one answerable for costs.” The case of Maclay v. Love, decided by this Court at the last term, is cited by appellants in support of their position ; but we are at a loss to perceive upon what ground it can be claimed that their position is fortified by that case.

The question involved in that case was as to the power of the wife to incumber or charge her separate estate by voluntary contract, and the mode and manner in which it can be legally exercised; and we held that the mode and manner was prescribed by the statute defining the lights and duties of husband and wife, and no valid incumbrance could be voluntarily created in any other way. The decision in that case was grounded upon the statute applicable to the question then before us. The same is true of our decision in the present case.

We here ground our decision upon the provisions of the Practice Act, by which alone the question before us is to be determined. We cannot reverse the judgment in this case without doing violence to the theory upon which Maclay v. Love proceeds, and we repeat what we said in that case as equally applicable to the present: “ The rights of the parties are fixed by statute, and the only duty or power of the Court is to enforce those rights in accordance with the spirit of the statute as plainly indicated by the letter.

Had we never been educated under the double system of common and equity law, as they prevail in England and the older States, we should have little difficulty with the statute before us, as we apprehend, in determining the rights of the parties in respect to the questions under consideration.” In this State we have, in many instances, wdiether wisely or unwisely, departed widely from the rules of the common law, and to a great extent established a new system by which to determine civil rights.

This new system sometimes runs counter to the proverbial conservatism of the legal profession, but it must nevertheless be applied by the Courts, and it is well to study its provisions by its own light, rather than the dying embers of that which it was intended to entirely supplant. Judgment affirmed. Mr. Justice Chrrey expressed no opinion.