199 P. 1104 | Cal. Ct. App. | 1921
This is an appeal from an order sustaining a general demurrer to the plaintiff's first amended complaint without leave to amend. Since the appeal was taken Mary E. Loeber, who commenced the action, has died, and the administratrix of her estate has been substituted as plaintiff and appellant. *56
The purpose of the action is to obtain a decree declaring a homestead acquired by the defendant from the government of the United States to be community property of the intestate and defendant, who were husband and wife at the time of the initiation of the proceeding for the grant of the homestead. From the complaint it appears that the deceased and defendant were married in the year 1888. In 1914 they separated and did not thereafter live together. About two months after said separation, to wit, in December, 1914, the defendant made a homestead entry upon the land in question. Subsequently an action for divorce was commenced by said wife, and in the month of October, 1916, she was granted a final decree of divorce from the defendant. About two years thereafter, the defendant having made his final proof upon the homestead application, and complied with the laws of the United States in that regard, a patent to the land was issued to him. It is disclosed by the amended complaint that in the meantime his divorced wife had remarried, and she commenced this action shortly after the defendant received said patent. The complaint also alleges that between December, 1910, and October, 1914, when the parties separated, the deceased had advanced to the defendant or on his account six hundred dollars, four hundred dollars of which was for living expenses, and two hundred dollars for the purpose of securing the relinquishment by one Melvina A. Lot of a desert land entry on the property the subject of this controversy. The money so alleged to have been furnished by the deceased to the defendant was advanced prior to the entry and settlement on the land by the defendant. The complaint further alleges that no adjustment of the property rights of the parties was sought or made by agreement between them in the divorce action, or otherwise.
No objection is urged by the defendant that this action may not be maintained on the ground that the property rights of the parties should have been settled in the divorce proceeding; nor could such objection very well be made in view of the position taken by the authorities in this state on the subject.[1] Where the plaintiff in an action for divorce does not set forth that there is any property whatever belonging to the community, nor ask for any judgment or determination concerning it, a decree in such a case being *57
for divorce simply does not conclude either of the parties in respect to their claims otherwise existing to the community property. (Coats v. Coats,
[2] Coming now to the sole controverted question in the case, namely, Was the homestead acquired by the defendant under the circumstances related his separate property or community property? It is contended by plaintiff that the right to the patent subsequently issued having been acquired during the existence of the marriage, although not perfected until after its dissolution, the perfected title when issued related back to its inception, and the property must be regarded as having been acquired during coverture, and therefore community property.
This position is not maintainable in this state. The grant of said homestead by the United States to the defendant was a gift or donation, and therefore it became his separate property. All property acquired by either spouse before marriage, and that acquired after marriage by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is separate property. All other property acquired after marriage by either husband or wife or both is community property. (Civ. Code, secs. 162-164.) In the federal cases it seems to be assumed that the homestead is a gift from the government. In the case of Smith v. Townsend,
In the case of Anderson v. Carkins,
The same principle is laid down in Fuller v. Ferguson,
In Washington a doctrine contrary to that followed inNoe v. Card is established, the cases in that state holding that when the entryman is a married man at the time of filing his application for a homestead, and he and his wife *60
reside upon the property and do the work necessary to acquire title thereto, such homestead when patent is issued is community property. In such a case the land, for the purpose of fixing the relative rights of the entryman and his wife, is regarded as having been acquired by purchase, the consideration being the settlement upon and improvement of the land, in which the wife participates with the husband. (Kromer v. Friday,
[3] Granting, as we must, that any portion or all of the six hundred dollars, alleged to have been advanced by the deceased to the defendant, was for the purpose of assisting him in his undertaking with respect to the land in question, this would not affect the title to or character of the property. This money constituted a loan to the defendant, giving rise to a right of action if not repaid. (Carlson v. Carlson,
The order is affirmed.
Waste, P. J., and Richards, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 1, 1921.
Angellotti, C. J., Shaw, J., Lawlor, J., and Lennon, J., concurred.
Wilbur, J., was absent.