95 Cal. 323 | Cal. | 1892
This is an equitable action to cancel and set aside a deed of certain realty, executed by Elmer D. Dimmick to the defendant, and asking that said property be decreed to bé the property of the estate of Julia A. Dimmick, deceased. Said Julia was the first wife of Elmer D. Dimmick,. and it is contended by plaintiff that at the time this property was conveyed to defendant it was the property of the estate of said deceased wife Julia, by virtue of its being her separate property at the date of her death. It is further contended that the deed to the defendant was never delivered, and hence no title passed to her. Judgment went for the defendant, and this appeal is prosecuted from that judgment, and the order denying a motion for a new trial.
The deed sought to be set aside is a deed of gift made to the defendant Sarah Smith Dimmick, the second wife of Elmer D. Dimmick, and dated February 2, 1889. The finding of the court, that the realty described in this deed was not the separate property of Julia A. Dim-mick, deceased, is fully supported by the evidence. It appears that she and Elmer D. Dimmick were married in Pennsylvania, nearly fifty years ago. That subsequently he received a gift of a small tract of land from his father,-and that later she received some money from the estate of her father. He also obtained a loan of the sum of $1,360 from his father-in-law, which he invested in land. This indebtedness was afterwards canceled,
As described by one of the witnesses, the husband was an “ industrious, thrifty, economical, and intelligent farmer and blacksmith.” He also traded in real estate, and whatever money his wife received by inheritance, or otherwise, passed into the common fund, and its identity forever lost in the purchase of numerous tracts of real estate, the titles to which were all taken in his name. It is unnecessary to follow in detail the migrations of these parties to Iowa, and from thence to California; it appears that the husband always had the complete and entire control and conduct of the property, selling and buying where and when he chose. While the evidence discloses that the proceeds of the realty owned in Pennsylvania were brought to Iowa, there is no evidence that any money was brought by them to California. It further appears that they made a deed of gift of quite a valuable tract of land to a son, and that the husband was the recipient of a gift of fifteen hundred dollars from his brother. In addition to all these facts, there is no evidence whatever as to the source of the particular funds which paid for the land involved in this litigation.
The principle of law is established beyond question, that real estate acquired by purchase during the existence of the married relation, no matter whether the deed be taken in the name of the husband or wife, or both, creates the presumption that such property is common property. While this presumption is not conclusive, the burden of proof rests upon the party affirming the fact to be to the contrary, and such fact must be established by clear and convincing evidence. (Ramsdell v. Fuller,
The evidence fully supports the finding that the deed was delivered by the grantor to the defendant. It was clearly his intention to vest the title of the realty in her, and the fact that he requested her to refrain from recording the instrument until after his death was entirely immaterial. Conceding he believed that if she should die first he could conceal or destroy the deed, and thereby reinvest the title in himself, still such fact does not militate against the sufficiency of the delivery at the date of the conveyance, or destroy his clear intention to part with the title and vest the same in her.
Let the judgment and order be affirmed.
Harrison, J., and Paterson, J., concurred