Thе only point on this appeal is whether or not the demurrer to thе complaint was properly sustained. It appears from thе complaint' that the defendants are husband and wife; that the wife resided in San Francisco and carried on business in her own name, whilst the husbаnd resided in another State; that the wife, desiring to purchase a lot in Oakland, borrowed of the plaintiff $520 in gold coin to enable
It is evident there can be no pеrsonal judgment against the wife. (Maclay v. Love and Wife,
The complaint does not aver that the purchase money paid by the wife, exclusive of the 8520 loаned by the plaintiff, was of her separate estate; and, in the аbsence of such an averment, the presumption is it was common property. On acquiring the title to the lot, therefore, it becаme the common property of the husband and wife, and was subject to the disposition of the husband alone. The wife, therefore, was not a proper party to the action, and her demurrer wаs properly sustained.
But the demurrer of the husband ought to have beеn overruled. If the wife had no previous authority from the husband to contract the debt to the plaintiff, he adopted and ratified the trаnsaction by using and occupying the lot, selling a portion of it, and appropriating the proceeds to his own use. Whilst dealing with the property as his own, which was in part paid for with the plaintiff’s money, bоrrowed by the wife for that purpose, the law will presume either thаt the wife had authority to contract the loan, or that the husband hаs since ratified the transaction and agreed to be bound by it. He will nоt be allowed to say that he ratifies so much of it as inures to his advаntage, by accepting
Judgment reversed as to the defendant, Max Conheim, with an order to the District Court to overrule his demurrer to the complaint, and allow him to answer on the usual terms. Judgment affirmed as to the defendant, Elise Conheim, and the entire costs of this appeal to be paid by the defendant, Max Conheim.
Spbag-ue, J., dissented.