52 Cal. 235 | Cal. | 1877
All the property owned by the husband before marriage, and that acquired afterward by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property. (Civil Code, sec. 163; Lewis & Chard v. Johns, 24 Cal. 98.) Property purchased during marriage with the separate funds of husband or wife constitutes it separate property. (Ramsdell v. Fuller, 28 Cal. 37.)
A donation will be void if the donor divests himself of all his property and does not reserve enough for his own subsistence. (Civil Code, sec. 155 ; 11 Robinson, 302.)
The property in suit is the only property owned by defendants, or in which they or either of them have any interest. The defendants are husband and wife. They selected this property •as a home for themselves. The land in controversy and five hundred and forty-five dollars used toward the construction of the house built thereon was the profits of a joint speculation of the husband and wife after marriage. The deed to plaintiffs, if a deed it be in law, was in fraud of the rights of the wife—the plaintiffs not being innocent purchasers, paying no consideration therefor.
The property sought to be recovered was the separate propperty of the defendant, John E. Martin, when he made the deed of gift to the plaintiff.
All the money paid for the lands was the separate property of John E. Martin. As the property was originally sold on credit to John E., the circumstance that Ruth K. (who had no interest in the property) executed the note with John E. on which he borrowed a portion of the sum paid, and the mortgage to secure the same, cannot affect the rights of the parties.
It is not necessary to decide whether the profits derived from the sale by John E. of portions of the property purchased by him were common property.
Judgment and order reversed and cause remanded for a new •trial.