Page:Federal Reporter, 1st Series, Volume 3.djvu/616



1. —A wife owned and resided with her husband upon lands which were her separate property and estate under the statute. Her husband conveyed these lands to a trustee to secure the payment of a debt. The trustee sold the lands in pursuance of the power contained in the deed of trust, and made a deed to the purchaser, after which the husband acknowiedged himself to be a tenant of the purchaser, to whom he agreed to pay rent for the lands. In an action brought by the purchaser against the husband, for the possession of the land, held, that the wife should be admitted a defendant, and that upon these facts the plaintiffs could not recover.

Mrs. Oliver owned, and, with her husband, lived upon, certain lands, which were her separate property and estate under the statute. Oliver, her husband, conveyed these lands to a trustee to secure a debt due from him to the plaintiffs. His wife signed this conveyance, but her acknowledgment was defective. The trustee in the deed sold the lands under the deed of trust to the plaintiffs, and executed to them a deed therefor. After the sale of the lands Oliver leased them from the plaintiffs. According to the terms of that lease the plaintiffs are entitled to the possession of the lands, as against Oliver, and this action of unlawful detainer was brought against Oliver for the purpose of dispossessing him.

Mrs. Oliver filed her petition to be made a defendant, in which she sets up that the lands were her sole and separate property and estate; that she never executed and acknowledged the deed of trust which is the basis of the plaintiffs' claim to the lands, and that she never authorized or assented to the lease of the lands by the plaintiffs to her husband; that she is now, and for many years prier to the execution of the deed of trust and lease had been, in the actual occupancy and possession of the lands as her separate property and estate.

Yonley & Whipple, for plaintiffs. U. M. Rose, for defendant. v.3,no.ll— 39