219 P. 200 | Idaho | 1923
— The original action was one between the Bannock National Bank and the Automobile Accessories Company, W. W. White, Ancy Sullivan, and D. D. White. The intervention was based upon the claim of Eleanor M. Sullivan that a sum of money attached in the original action as the property of Ancy Sullivan, her husband, was her separate property. The cause was tried to the court sitting without a jury and judgment was awarded against appellant, holding that the money in controversy was community property and therefore subject to the judgment entered against the husband of appellant. From this judgment this appeal is taken.
The record discloses the following facts:' Ancy Sullivan owned a homestead entry prior to his marriage to Eleanor M. Sullivan. Thereafter he sold the homestead, receiving in part payment therefor certain notes aggregating approximately $2,500, which were secured by a mortgage. Prior to the marriage appellant loaned to her husband certain sums of money from her separate property. On June 2, 1915, the loans with the interest aggregated approximately $2,600. At this time appellant and her husband were considering purchasing a home in Pocatello and talked to one D. W. Church in regard thereto. Mr. Church, an officer of respondent bank, owned a house and lot which he desired to sell, which appellant and her husband inspected, found the same satisfactory and agreed to 'buy at a price of $2,500. At the time
“All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired.”
The presumption is that all property acquired by either spouse during the marriage is community property and the burden rests upon the one who asserts it to be separate property to establish such fact by a preponderance of the evidence. (Clifford v. Lake, 33 Ida. 77, 190 Pac. 714.) We think that this presumption was sufficiently overcome by appellant. It is uncontradieted that appellant made various loans to her husband before and subsequent to the marriage ; that at the time of the purchase of the house and lot
There is no merit in respondent’s contention that appellant is bound by the financial statement made to the bank by her husband in which he listed this particular property as the property of himself and appellant. She had nothing to do, so far as the record shows, with the making of this statement.
Taking into consideration the knowledge of the transaction imputed to the bank through its officer that it was appellant’s separate property and the fact that Ancy Sullivan was free from debt at the time the deed was given and that it was given in payment of his indebtedness to appellant, we think appellant established conclusively that it was her separate property.
We think the evidence is clearly insufficient to support the judgment and the same should be reversed, with instructions to the trial court to enter judgment in favor of appellant and against respondent. 'Costs awarded to appellant.