*1 Hamilton v. Hubbard. — 29,1901.] [Sac. Bank. No. 1749. In November etc., MOSES Appellant, HAMILTON, Administrator, Respondents. MARIA al., S. HUBBARD et Property—Presump- Wife—Community Separate Husband and Party.- Conveyance Third tion— Gift from Husband Wife— — during spouse acquired either property that transac- marriage apply where cannot was, con- effect, and the tion veyance by a third was made to her the husband’s party, grantor the husband’s by him. exchange for an for the lot deeded Payment Consideration—Resulting Id. Presumed— not Trust — presumption of Presumption Advancement Gift. resulting for trust in the consideration favor of one who advances another, only applies between the name of other, apply each and does not any person is under person paying for whom the natural, moral, provide. In such presumption is, purchase intended purchaser to be an nominal advancement or for the benefit ofthe grantee. Id.—Finding against proved Evidence.—A party, husband’s re- have been deeded to the a third at the quest, exchange con- for veyed grantors, of the husband the evidence. Id.—Appeal—Staleness Shown. Where the com- of Demand plaint nothing not show stale findings defense, support or conclusions of such a the court to plaintiff’s upon point that the demand is stale cannot be sustained appeal. from a Court of San Superior APPEAL trial. County and from an-order new G. W. Joaquin denying Nicol, Judge presiding. in Department
The facts are stated in the opinion ^rendered Two. for Carpenter, Appellant.
A. H. Thompson, Middlecoff, Respond Budd & and Louttit & ents. —
THE COURT. Upon a careful reconsideration we are convinced there is no conflict substantial and that there to support the superior controversy, court to the effect lot in *2 upon its conveyance community to Mrs. Hamilton, became The Department opinion therefore stand.
The point is made in that the rehearing the petition for plaintiff’s demand is stale. This be sustained. position cannot The and complaint, a stale show there is of the superior conclusions court to support such a defense. order appealed from are reversed. The following to, is the opinion above referred which was
rendered in Department Two, 29, 1901: May
SMITH, C. The plaintiff is the Frances administrator of Hamilton, his 22, deceased to whom he married May was 1867, 29,1887. administrator, died who March as He sues to quiet the title of her 56, etc., estate to lot No/3, block of Stockton. Both city title under a parties deraign deed one 6, Weber Frances the deceased, of date July 1867, to her purporting the lot question,—the her administrator; as plaintiff, defendant, foreclosure 26, made to mortgage her, August 1892, by plaintiff, personal capacity, commissioner’s executed him in thereof. pursuance found that question court was the com-
munity property Moses Hamilton and his deceased wife. rests wholly upon deed Weber to the latter,—the source acknowledged of title both parties. Hence the is as effect of question presented this deed. Frances, grantee If the deceased took the therein, as as her adminis- plaintiff, recover; entitled to not. trator, was as it prior Under our law stood amendment of section 1889, Civil March 19, was acquired by either spouse during marriage all property (Meyer Rep. 547, 162, 163, Civ. on Cal. *3 ent, have therefore there is no room for We presumption. established; effect of the facts thus legal to determine only of the and familiar this, principles under well-established the result not be would (assuming present law state, the marital affecting peculiar affected laws relations), sufficiently obvious. a or conveyance gift is not merely
A deed evidence itself, operates It is the grant. grant or ipso other facto transfer or title described Code, 1053, 1146; Shanahan (Civ. v. Crampian, of equity, nor—unless under the rules 11,13); peculiar Cal. 92 a its terms or effect be contradicted. legal to raise trust—can is made to one and the Ordinarily, another, a paid by “presumed” trust latter. sec. (Civ. 583.) of the “ ” to each other only transactions between arises Trusts, not indulged on sec. where the Perry 126), (1 child, is to the or other person wife whom natural, under some paying the person consideration] [the In moral, provide.” pre is, “that purchase were intended sumption (1 an for the nominal purchaser.” advancement Perry to be Trusts, Trustees, 143; note.) Hill on (97), sec. and, therefore Mrs. transaction was 606 Cal. the express provisions code, of the (Civ. Code, 162.) sec. code,
Nor are there
provisions of the
or decisions
any
it.
court,
confirming
that affect this result
than as
law,
Under our
make a
husband
deed—-whether
and in such case
that,
well settled
the absence of evidence
intent,
sepa-
land
in her the
vest
Tillaux,
rate
(Civ.
sec.
Tillaux v.
McQuade,
Cal. 672; Ions
Harbison,
v.
Carter v.
“ In the absence of
evidence of intention outside
must
evidencing
which, upon
the intention
...
ren
imports;
it that effect
be to
deny
der the
inoperative
Marshall,
void.
v.
Tex.
(Story
305.
. . . The
2)
prima
from a deed
arising
facie
of the husband to the
that it
was intended to
its character from community property
to the separate
Prop
Platt on
(Citing
wife.”
erty Rights Married Women,
sec.
The contrary was
early
held
an
case in
(Kohner Ashenauer,
this state
581), and
in the Texas
cited;
cases there
de
but these
be regarded
cisions must
as overruled
the later
authorities.
principle
the cases cited
to the case here.
applies equally
There is no essential distinction
between
deed direct from
and a deed from him to her per interpositam
(Michod
personam.
Cirod,
Strahan,
How.
Smith
Tex.
Baldridge Scott,
I advise that the versed. C., Gray, concurred. C., and
Cooper, foregoing opinion given reasons For the from are reversed. appealed and order
Henshaw,
J., McFarland,
J., Temple,
J.