Opinion
02-11-1887
PIDCOCK v. MELLICK and others.
Mr. Hulsizer and Mr. Shipman, for the motion. Mr. Bergen, contra.
On motion to strike out answers.
Mr. Hulsizer and Mr. Shipman, for the motion.
Mr. Bergen, contra.
BIRD, V. C. This bill is filed to foreclose a mortgage. It is alleged that Mellick and his wife joined in the execution of the mortgage. The motion is to strike out both answers. One of the grounds upon which the motion to strike out the answer of the wife rests, is that she has answered separately, without the leave of the court. The counsel for the wife admits that the former rules respecting the practice in this particular required the wife to obtain the leave of the court before she could file her separate answer, but insists that the recent statutes respecting married women (.Revision, 638, 10, 11) have removed this disability, citing, in support of this insistment, Wilson v. Herbert, 41 N. J. Law, 454, and Powers v. Totten, 42 N. J. Law, 445. These cases were at law, and respecting the debts which the wife had contracted. In the case under consideration the alleged debt is that of the husband, the wife having joined in the execution of the mortgage given as a security for that debt. It being admitted that inequity a married woman formerly could not answer separately without leave, it must be ascertained whether the statute has altered the practice in this respect. Let us look at the statute, and see how far it reaches. It says that the husband shall not, by reason of his marriage, be liable for the debts of his wife, but that she shall be liable to be sued in her own name separately, and her separate property made liable as though she were unmarried. It also provides that she may maintain an action in her own name, and without joining her husband, for all breaches of contract, and for the recovery of all debts and property which by the act is declared to be hers. The present suit is not brought to recover a debt of the wife; nor is any right, title, or interest in property of any kind which the act declares to be hers in anywise involved. She is defendant in the present case because she is the wife of the alleged debtor, the mortgagor, and as such wife has an interest in the equity of redemption. I conclude, therefore, that, as to such case, the former practice has not been changed by the statute, either directly or by implication, and that the wife cannot answer separately without the leave of the court.
This view renders it unnecessary for me to consider, at this time, the questions raised as to the sufficiency of the husband's answer; for if, upon application, it should be ordered that the wife join with her husband in answering, then the question will be presented whether the present answer filed by him must not of necessity fall.
The motion to strike out the answer of the wife must prevail, with costs.