10 Cal. 9 | Cal. | 1858
Terry, C. J., concurring.
The defendants insist that the deed of the sheriff would be no cloud upon the title of the plaintiff, and this is the only question in the case.
In the case of Shattuck v. Carson, (2 Cal. Rep., 588,) the property was sold by one Griffith to plaintiff, by regular deed, in February, 1852, and after this sale the property was levied upon as the ¡property of Griffith. This Court decided that the deed of the sheriff would have been a cloud upon the title of. Shattuck. In that case the entire title had passed, by deed, from Griffith to Shattuck; and Griffith had no interest in the land that could pass to the purchaser by the sale and deed of the sheriff. In the case of Petit v. Shepherd, (5 Paige, 501,) where the lien of
But we think this case a much stronger one than either of the two above mentioned. By section second of the “Act defining the rights of Husband and Wife,” (Wood’s Digest, 487,) it is provided that “all property acquired after the marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.” And by section ninth the husband has the absolute power of disposition of the common property, during the marriage, as of his own separate estate.
The right of the wife to acquire property by purchase, during the marriage, can only exist as an exception to the general rule, as laid down in section second. This exception exists in the case of a sole trader under the statute. The property in this ease having been conveyed to the plaintiff during the marriage, was prima facie common property, and subject to the disposition of the husband. A sale and deed by the sheriff would convey to the purchaser a prima facie title, which the plaintiff would have to overcome by proof. In a suit by the purchaser under execution, to recover possession of this property, he would have, on his part, to prove : first, the marriage; second, the conveyance to the wife; third, the conveyance to him; fourth, possession in defendants. This would give him a prima facie right to recover. To overcome this prima facie case, the wife would have to show that she was a sole trader at the time of the conveyance to her; and to prove that she was such, she must show that she complied with the conditions prescribed by the statute. In her answer she would have to set up this claim as new matter, and sustain it by proof.
Judgment reversed, and cause remanded.