16 Cal. 287 | Cal. | 1860
Cope, J. concurring.
The bill in this case was filed to subject a lot in San Francisco to sale, for the payment of a note and mortgage made by Mrs. Brown. Brown, in 1853, went off and left his wife to take care of herself. Before going, he made a deed of bargain and sale of this lot to his wife. The bill alleges, that “ immediately thereupon, the said Catharine Brown entered into the possession, use and occupation of the premises, and has ever since remained in the quiet enjoyment thereof, as her separate property, and without any interference of her said husband.” On the twenty-first of April, 1853, Catharine Brown mortgaged this property to one Henshaw, for $1,000, with interest, etc. This principal sum was spent in improving the property. Henshaw assigned this note and mortgage to Alexander J. Forbes, and he to the female plaintiff. In 1855, Mrs. Brown made a new note and mortgage, for a balance due on the old note to the plaintiff. Brown did not answer. The wife answered, denying her separation from her husband, as charged in the bill.
The deed of Brown to his wife is not set out, so that we cannot know whether any terms of it go to create a separate estate in the wife. We presume, however, that it is in the common form of a deed of bargain and sale.
The bill evidently proceeds upon the idea, that the husband had no interest in the property; but that the title vested in the wife, as her separate property by the deed; and the attempt is made to subject the property as that of the wife, by the act of the wife, and for her debt— with which debt the husband is not charged to have anything to do, or to be in any way bound to pay it.
To make out plaintiff’s case, therefore, something must be shown to bind the wife, or to subject this property as hers, or as bound by her acts.
If this property were, after this deed, common property, as it was before, or the separate property of the husband—of which we are not advised—still, nothing appears by this bill to entitle the plaintiff to the relief which he seeks.
If we take the plaintiff’s theory for true, that the property became by the deed the separate property of the wife, then the deed of mortgage must have been so executed as to bind it. But the statutes of the State prescribe the mode of charging such separate estate—at least, if acquired after the acts were passed; and we do not see that these acts, when operating in futuro, are not constitutional. These acts require, that the husband shall unite in the conveyance; and this is an indispensable condition, as we more than intimated in the case of Morrison v. Wilson.
It is true, that there is an exception to this requirement. It is found in the Act of February 14th, 1855, (Wood’s Digest, 490) which is in these words: “ Section 1, article 2,630. That a married woman, of legal age, shall have power to convey and transfer lands, or any estate or interest therein, vested in or held by her in her own right, as fully and perfectly as she might or could do if single or unmarried; provided, the husband of such married woman be not, and for one year next preceding the execution of the instrument of conveyance by the wife, has not been bona fide residing in this State. Section 2. The execution of an instrument of conveyance by a married woman, independent of her husband, as provided in the preceding section, shall be acknowledged before the District Judge of the county in which the lands described in the conveyance are located, and the Judge taldng such acknowledgment, shall, before he certify the same, be satisfied by the oaths of at least two credible, disinterested citizens of this State, that the husband of such married woman does not, and for one year next preceding the day of acknowledgment has not resided in this State; which fact, and the names of the witnesses by whom the same was proved, shall be recited in the certificate of acknowledgment.”
But this case does not fall within these provisions. Because, first, the husband is not shown to have been a non-resident of the State, within the meaning and limitation of these provisions; and second, the deed does not seem to have been executed and acknowledged as provided by the second section of the act.
The Legislature had a right to say how this sort of property should be bound, and it has, in effect, said that it should not be bound in this way; at least, no facts in this record show a right in the wife to bind the lot in this manner.
This was the conclusion of the learned Judge below, and we affirm his judgment.
A rehearing having been granted, and had, the Court at.the January term, 1861, ordered from the Bench, that the former judgment be affirmed.