Page:Federal Reporter, 1st Series, Volume 3.djvu/618

 CHAFPB ». OLIVEB. ^11 �own right and name, and as of her own property." In a Word, she was invested with the legal title, freed from the marital rightsof her husbarid and the claims of his creditbrs. Howell V. Howell, Adm'r, 19 Ark. 345 ; 1 Bishop on Married Wonien, §§ 799-801 ; AUen v. Hightower, 21 Ark. 316. �In the absence of the statute, Mrs. Oliver would have been driven to her remedy in equity to recover this property, (1 Bishop on Married Women, § 801,) and in this court she could not have availed herself of her equitable title as & defence to this stiit ; but, under the statute, she is the legal owner of the lands, and by the provisions of the Code may sue and defend in her own name, at law, for the protection of her right. Gantt's Digest, § 4487; Trieber and Wife v* Stover a Co. 30 Ark. 727. �The deed to Mrs. Oliver, by its tenns, disclosed that these lands were her separate estate ; and this deed was recorded before the execution, by her husband, of the deed of trust to the plaintiffs, and before the execution by him of the lease to the plaintiffs. The record of the deed was notice to the plaintiffs, and equivalent to filing a schedule. Gould's Digest, § 8, c. 111. The deed of trust and lease were nuUities as against Mrs. Oliver. Oliver had no possession of the lands or right of possession, but entered under and in subordination to his wife's title. If it be conceded that the lease estops him to deny plaintiffs' title, it does not bind or estop his wife, who aU the time has been in the possession of the lands, and enti- tled to the rents and profits, to the exclusion of her husband and his grantors. She is now here setting up her rights, and she cannot be deprived of them by any lease or other devise of her husband.., She isentitled to a judgment that will leave her in the enjoyment of that which is clearly hers. �Such a judgment necessarily enures to the benefit of hei' co-defendant, her husband, because, if one defendant sho\frs a good right to the exclusive possession of the whole premises, the plaintiffs have no right of possession, and their action fails as to ail of the defendants. �It would be a vain thing to render judgment in favor of the plaintif-?, and against one defendant, upon a record ahd ����