194 P. 465 | Nev. | 1921
By the Court,
This is an action to recover judgment in the sum of $1,012.71 against the defendants. The complaint contains two causes of action, the first being to recover the sum of $624.12 for goods, wares, and merchandise alleged to have been furnished, sold, and delivered by the plaintiff to the defendants, at their special instance and request, for which it is alleged they agreed to pay said sum. The second cause of action is to recover for labor furnished at the special instance and request of
The defendants are husband and wife, and resided for a time at Tonopah and Blair, Nevada, where they accumulated considerable money. In 1913, certain real estate in Yerington, Lyon County, Nevada, upon which there was at all times during the dealings between the parties a building known as the “Central Garage,” was conveyed to the defendant John Ross, who on January 1, 1917, deeded it to the defendant Mary Ross, in consideration of $1 and love and affection. On February 10, 1915, pursuant to negotiations theretofore conducted between plaintiff and John Ross, a lease was entered into whereby the plaintiff acquired possession of said real estate and improvements for a term of three years, in consideration of certain rentals agreed to be paid.
On the part of plaintiff it is contended, and the court found, that during the latter part of the year 1918 negotiations were entered into between the parties, whereby it was agreed that the plaintiff might erect upon said lot and at the rear end of the Central Garage, situated thereon, a shop, and that in so doing he should furnish all material and labor, with the understanding that upon his vacating the premises he was to be paid by the defendants for the actual cost of material and labor necessary in constructing such addition. At the time of the construction of the addition the plaintiff had no lease upon the premises. The addition is built of corrugated iron, and has a cement floor, with two or three pits.
The trial court found the allegations of the complaint to be true, that the property upon which the addition had been constructed was community property, and rendered judgment in favor of the plaintiff and against both of the defendants. An appeal has been taken by both of the defendants from the judgment and the order denying a motion for a new trial.
We come now to the contention. of the defendant Mary Ross that the evidence does not justify the findings that the property is community property. The defendants testified that, while residing in Tonopah and Blair, through speculation in stocks, a considerable sum of money was made up to a certain time. It is also testified to that the tide turned and that John Ross was losing money, which moved Mrs. Ross to suggest a division of the remaining funds which had been accumulated. The testimony also shows that the money was, in 1906, “divided” between the defendants, John Ross depositing that over which he thus acquired control in a bank which failed, and Mrs. Ross keeping that over
“The presumption, therefore, attending the possession of property by either, is that it belongs to the community ; exceptions to the rule must be proved. * * * This invariable presumption which attends the possession of property by either spouse during the existence of the community can only be overcome by clear and certain proof. * * * ”
And in the Estate of Warner, 167 Cal. 688, 140 Pac. 584, the court said:
“It is undoubtedly true that the presumption which attends the possession of property by either spouse may only be overcome by clear and certain proof that it is really separate property.”
While we have not considered separately each of the errors assigned, what we have said disposes of all of them.
It appears that the proceeds from the sale of the property in question to Dillon were deposited in bank in the name of the defendant Mary Ross, and that the bank was garnisheed in this proceeding. We are not 'called upon to determine whether the money which was
It is ordered that the judgment appealed from be modified so as to vacate and set aside the judgment against Mary Ross, and that the proceeding be dismissed as to her, and that the judgment against John Ross be affirmed; the respondent to recover against John Ross his costs on this appeal.