22 Cal. 283 | Cal. | 1863
The plaintiff in this case is a married woman, and claims to be a sole trader. She brings this action to enjoin the defendant, Knowlton, the Sheriff of Nevada County, from selling certain real estate (claimed by her as her sole and separate property, acquired by her as such sole trader,) under an execution issued on a judgment against her husband. The plaintiff recovered judgment, and defendants moved for a new trial, which was denied, and they appeal from the judgment and the order refusing a new trial.
The deed to the plaintiff of the property in controversy is dated June 30th, 1860, and is made to her directly for the consideration of 11,000, expressed to have been paid by her to the grantors. It is in the usual form of a deed of bargain and sale. She is not "described in the deed as a married woman, nor does it purport to convey the property to her sole, separate, or exclusive use, nor does it state that she purchased the property as a sole trader. This Court has decided that a conveyance of this kind to the wife during coverture constitutes it prima facie common property. (Meyer v. Kinzer, 12 Cal. 247; Tryon v. Sutton, 13 Id. 490; Alverson v. Jones, 10 Id. 9.) And the burden of proof is on the wife to show that it is her separate property and not that of the community. As community property it is liable for the debts of the husband.
In this case the wife claims that she is a sole trader, and that she purchased it, and has used it to carry on her business as a sole trader. The burden of proof of this claim is upon her. (Alverson v. Jones, 10 Cal. 9.) To sustain her case she offered in evidence the following declaration:
“ State of California, County of Nevada.: H. Adams, resident of Nevada City, and wife of P. Adams, hereby declares that she intends to carry on the business of restaurant and hotel keeping, accommodating boarders and lodgers, in the City of Nevada, and from this date she will be individually responsible in her own name*289 for all debts contracted by her on account of her said business; that the amount of money invested in said business does not exceed or equal five thousand dollars. H. ADAMS.
“ Subscribed and sworn to before me, this third day of July, 1857. J. J. Caldwell, Notary Public.”
This declaration was also duly acknowledged and was recorded in the Recorder’s office of Nevada County, among the records of separate property of married women. The Sole Trader Act requires that she “ shall make a declaration before a Notary Public, or other person authorized to take acknowledgments of deeds, that she intends to carry on business in her own name and on her own account, specifically setting forth in her declaration the nature of the business, trade, profession, or art; and from that date she shall be individually responsible in her own name for all debts contracted by her on account of her said trade, business, profession, or art,” etc. The requirements of the statute are plain and simple. There are three essential facts to be stated in the declaration—first, that she intends carrying on some certain business, specifically describing it; second, that she intends to carry on such business in her own name, and, third, on her own account. Both of these last requisites are omitted in this declaration, whether intentionally or by mistake of the person writing it does not appear, nor can it make any difference how it occurred, as in either case the defect is fatal. The statute is in derogation of the common law, and the rights conferred by it can only be acquired by at least a substantial compliance with its provisions. The facts omitted in this case are of a substantial character, and essential to the validity of the declaration. We look in the instrument in vain to find any language of equivalent import. The statement that “ she will be individually responsible in her own name for all debts contracted by her on account of her said business,” is but copying what the statute declares shall be the legal effect of the declaration when properly made and recorded. They do not state that she intends to carry on the business in her own name, or on her own account, but merely declares the extent to which she will be responsible. The declaration is insufficient to sustain her claim to hold this property as a sole trader.
The judgment is reversed and the cause remanded.
