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to be guarded and protected. Among other cases, see Mills v. Van Voorhies, 20 N. Y., 412; Swaine v. Perine, 5 Johns. Ch., 482; Tabele v. Tabele, 1 Johns. Ch., 45. It is a principle universally admitted, that the husband cannot deprive her of it, and that she can only be divested by authority of the state, or by or in consequence of her own voluntary act.

Before acceding to the view that such a right may be extinguished through a suit in partition by the husband, instituted and carried to completion without her being a party or being represented, and without her having any chance to be heard, we ought to find the rule of law compelling it, most clear and decisive.

It may be said that the provisions of the partition law are not so framed and arranged, unless we go outside and supplement the law by judicial legislation, as to make it practicable to guard the wife's right, whether she be a party or not, where a sale becomes necessary.

Were this to be admitted, it would not follow that we should assume the legislature to have intended that the right should be invaded and destroyed in her absence. At the utmost, nothing further could be inferred than that having made no adequate provision to protect her right in the event of a sale, it was not designed that a sale should interfere with the right.

It is doubtless true that whichever way we turn we are exposed to much embarrassment. But the difficulties, however formidable, which array themselves against the view that she may be a party and receive protection, are merely difficulties connected with remedy and procedure, while those which attend the theory that her right may be taken from her without her being a party or in a situation to be heard, are such as undermine the substance of justice. "No man's right," say the court in Buck v. Sherman, "can be legally affected without notice, actual or constructive."-2 Doug., 176. The rule is believed to be universal, that a decree in equity is not binding on one not a party or in

28 MICH.-8.

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any way represented by, or in privity with a party.-Brown v. Wyncoop, 2 Blackf., 230; Shaw v. Hoadley, 8 Blackf., 165; Brainard v. Cooper, 6 Seld., 356; Com. v. Cambridge,

4 Mass., 627; Bradstreet v. Neptune Ins. Co., 3 Sum., 600; Mallow v. Hinde, 12 Wheat., 193; Barney v. Baltimore City, 6 Wall., 280; Hunt v. Wickliffe, 2 Pet., 201; Giffard v. Hort, 1 Sch. & Lef., 386; Wheeler v. Morris, 2 Bos., 524.

If driven to choose between a denial or subversion of justice and a mere amplification of a remedy in equity in perfect harmony with the principles which govern the court in settlement cases and others similar, I think we ought not to hesitate about adopting the latter. Recurring to the statute of partition, I think it is difficult to read it without feeling that it was not meant to cut off the wife's right in her absence as a party. The complainant is required to set forth in the bill the right of "every person who, by any contingency contained in any devise, grant, or otherwise, may be or become entitled to any beneficial interest in the premises."-Comp. L., § 6269.

This provision certainly, I think, includes the right possessed by the wife, and I find nothing elsewhere to lead me to think that the clause would be satisfied by a reading which did not include it. Why require this right to be set forth, if its existence was not to affect results, and if it was intended that the right should be wholly ignored? But the next section provides that every one having any such "interest" may be made a party. Now this section was intended to cover the same ground as to parties as that covered by the preceding section as to rights and interests, and it had for its obvious purpose a requirement to bring in as parties all the owners of all the rights and interests which the preceding section ordered to be set forth.

These regulations appear to me to cover the case of the wife, and they evince a purpose in the legislature to provide in broad terms for bringing in every one possessing a right liable to be disturbed and so substantial as to be capable of influencing the result. And this anxiety for the

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bringing in of all persons having rights or interests is further manifested by the cautious insertion of explicit directions for making and notifying new or additional parties.

Proceeding to another part of the statute, it will be observed that it is very precise in declaring who shall be bound by the final decree, when the premises are divided. These regulations are contained in § 6296 and the section next following. By the first of these sections the decree is made conclusive on, first, all parties named therein, and their legal representatives, who shall at the time have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises, after the termination of any particular estate therein, or who, by any contingency contained in any will or grant, or otherwise, may be or become entitled to any beneficial interest in the premises, or who shall have any interest in any undivided share of the premises as tenant for years, for life, by the courtesy, or in dower; second, all persons interested in the premises, who may be unknown, to whom notice shall have been given by personal service, or by publishing the same as is herein before directed; and, third, all other persons claiming from such parties or persons, or either of them.

And unless

This section passes over exactly the same ground relative to rights and interests as that comprehended by the previous provisions, which regulate the setting forth of rights and interests, and make it needful to bring in as parties the owners of such rights and interests. the former provisions include the right of the wife, it follows that this section, which ordains what rights and parties will be bound, will not apply to it. And, on the other hand, if this section is held to apply to the right of the wife, it can only be done on principles and reasoning which must make the other provisions include the wife and her right. The second provision is precisely co-extensive with the former ones, and the effect which it gives to the decree upon parties and rights is just such as must be

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legally appropriate as the end and consequence of proceedings begun as directed and regularly carried out.

Now if these various provisions as to what rights are to be set out, as to the persons to be made parties, and as to the effect of the decree when the land is divided, do not include the case of a married woman in the position of Mrs. Klein, then she would not be precluded even by decree and partition of the land.

This result is rendered unavoidable by the terms of the section immediately following that last quoted from. For it declares explicitly that such decree and partition shall not preclude any person except such as are specified in the last preceding section, from claiming any title to the premises in question, or from controverting the title or interest of the parties between whom such partition shall be made. -Comp. L., § 6297.

If, then, the statute does not intend that a married woman in the position of Mrs. Klein may be a party, if her condition is not included, it is then plain, from the terms of this same statute, that she cannot be "precluded" even when there is no sale, and where nothing more is done than to reduce the holdings in common to holdings in severalty. And it will follow that no decree and partition are possible under this statute, which will preclude a wife in the situation the defendant in error occupied. If, however, as I think, the right of the married woman is within the description given in the statute, and she may be made a party, and her right as connected with the rights of others be justly dealt with, then she may be reached by being made a party, and on being made a party she may be bound by the decree.

Leaving this branch of the statute, and turning to that portion which relates to a sale, we come to the provisions which declare the effect to be given to the conveyance which is authorized. These provisions are contained in two sections (Comp. L., §§ 6321, 6322), and as they are important, they are here quoted.

"Such conveyances, so executed, shall be recorded in the

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county where the premises are situated; and shall be a bar, both in law and equity, against all persons interested in any way, who shall have been named as parties in the said proceedings, and against all such parties as were unknown, if notice of the order to appear and answer shall have been given by such publication or service of notice as is hereinbefore directed; and against all other persons claiming from such parties, or either of them."

"Such conveyances shall also be a bar against all persons having specific liens on any undivided share or interest therein, who shall have been made parties to the proceedings; but no creditor having any such specific lien shall be affected by such sale or conveyance, unless he shall have been made a party to the proceedings."

In providing in terms that parties and privies should be bound, the legislature left it to be implied that no others should be, and it seems impossible to read the chapter without seeing in every part of it the evidence of a design to adhere to the principle imbedded in our jurisprudence, which requires that a person shall have a chance to be heard before any valuable right of his shall be extinguished by or through judicial action. In view of the provisions which have been cited, and their objects and subjects, it may be laid down with confidence that we should find in them, if anywhere, the marks of a design to disregard this principle, if it was meant to be disregarded. But we do not find

any thing of the kind. On the contrary, they afford strong evidence of an opposite purpose.

And this is the material consideration. That the course to be pursued to guard the woman's right is not delineated, that difficulties will intersect the path of the court in seeking to protect it, is a matter of secondary importance. If the end is required, if the right is to have protection, the means must be found. Such is the result to which I am led, upon general principles, and on a survey of this statute. But there is still another consideration not to be overlooked.