The opinion of the court was delivered by
If the husband has a legal interest in the note by virtue of the marital relation, he may join his wife in a suit ¡upon it. Otherwise he cannot join, but the wife must sue alone,
being empowered to do so by the statute. So held when this case was hero before. 61 Vt. 390.
It is conceded that the statute of 1884 cannot take away any right the husband had to reduce this note to his possession, but -it is claimed that he never had any such right; first, because, being for value. received and payable to the wife, it imports, uprima facie, that the consideration moved from her or her separate property, and that therefore the note is hers and not his; and, second, because it should be presumed that the consideration came to her in some of the ways that make the note by statute irreducible to his possession.
If we modify the first claim by adding the husband’s right of (reduction to possession, it will comport with a long line of cases -in this State, one of which is Stearns v. Admr. of Stearns, 30 Vt. 213, where that exact question was ruled, and the note held to be the property of the wife, and to pass to her administrator, it not having been reduced to her husband’s possession in her -lifetime. That in such a case, aside from any statute, the husband has the right to reduce the note to his possession, cannot be •doubted, for so are all the cases.
But as to the second claim, it asks us to presume against the •common law, for by that, in their marital relations, the suprem•acy of the husband is presumed. Mr. Schouler says that we must bear in mind that the married women’s acts have reference, not to the wife’s property in mass, but to property acquired in certain instances by way of exception to the old .rule of cov*267ei'ture ; that broad as they may often, appear, these statutes are •considerably restrained by judicial construction and the application of .presumptions; and that in Massachusetts, Maine, Illinois, Wisconsin, Pennsylvania, and some other States, the presumption •still is, nothing to the contrary appearing, that a married woman’s property belongs to her husband as at the common law. Schoul. Husb. & Wife, s. 223. But it is not necessary for us to adopt this view in order to dispose of the question, for it is enough to say that we cannot presume that the consideration came to the wife in a way that makes the note by statute irreducible to the husband’s possession.
In some of the States the inclination is, not to presume either way, but to leave it to proof.
But it is still claimed that notwithstanding all this, the husband cannot join, for that the suit as brought was not a reduction, nor an attempted reduction, to his possession, but a •recognition of the wife’s continuing right to the note and to its enforcement in her behalf as her separate property, and that therefore, being competent by statute, she must sue alone.
It is undoubtedly trué, as said in Driggs v. Abbott, 27 Vt. 580, and Bartlett and wife v. Boyd, 34 Vt. 256, that the husband’s joining his wife in the suit affords evidence of his election •or intention to treat the note as her separate estate. But that act does not tahe away his right of reduction, nor estop him from thereafter exercising it by appropriating the avails of the judgment to his own use; and what is said in the cases cited was not intended to go that far. Chancellor Kent says that if the suit is in the name of the husband and wife, and the husband dies before he reduces the property to possession, the wife, as survivor, takes the benefit of the recovery. 2 Kent Com. 137. It is said in Perry v. Wheelock, 49 Vt. 63, 67, that unless the husband does some positive act in regard to a judgment recovered in the name of himself and wife of which she is the meritorious cause of action, or in regard to the money received on such judgment, that clearly evinces a purpose on his part of depriving *268his wife of the judgment or the avails of it and to make them his own, the law presumes the judgment and the avails of it to-remain the property of the wife.
This is true as applicable to this case. See, also, Crittenden and wife v. Alexander, 15 Cray, 432.
Thus it appears that the joinder of the husband with the wife in a suit on her chose in action does not deprive him of his right of reduction to possession, but that he may still exercise the right • if he will. It follows, therefore, that this husband has an interest in this note, growing out of his still-existing right to reduce to his possession the avails of it when realized, and hence he is a proper party plaintiff as the case is presented by the count filed since the former decision, by which it appears that the plaintiffs were husband and wife when the note was given, which was before the statute of 1884.
We find no error; but, that the defendant may replead, the
Judgment in chief is reversed fro forma, with costs to the plaintiffs, and the cause remanded.
Boyce, Ch. J., dissents.