It is shown by the face and context of the deed that it was a gift.
The Act of April 17th,1850, provides that “All property, real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property.” (Act relative to Husband and Wife; Acts of 1850, p. 254, Sec. 1.)
By the same Act, all property acquired by purchase by either party during coverture becomes common property. (Ibid, Sec. 2.)
In considering this statute, it is essential that we keep in view its origin and the purpose of its enactment. Nothing is more certain than that we have transplanted our whole jurisprudence, so far as it relates to the rights of property between husband and wife, from the civil law, or rather from that modification of the civil law which prevailed in Louisiana, Florida, Mexico, and other Spanish colonies.
This is shown not only by the history of our State, but appears also from a comparison of the provisions of our Act with those of the civil law and of codes founded upon it.
It is quite manifest that the word “gift” in the Act referred to has not the same meaning as the same word has at common law. At common law the methods of acquiring real property were divided into descent and purchase, and every acquisition which was not a descent was a purchase. (2 Black. Comm. 201; 3 Cruise’s Digest, 317.)
After the passage of the Act of April, 1850, that Act having provided no special mode of conveyance, it became necessary to resort to existing forms in order to vest "property in husband or wife by way of gift.
The form of deed adopted by Martina Castro is that most usual in California for the assurance of real property. The operative effectual words of conveyance are, “ grant, bargain, sell, and convey,” and the consideration mentioned is “the natural love and affection which the grantor bears for her children, together with the further sum of five dollars.” This deed, when before this Court on a former occasion, was incidentally termed by a learned Judge a “bargain and sale;” but the question of the character of the deed was not then in controversy; and at all events, the Court could only have referred to the verbal structure of the instrument, and not to its legal character as a conveyance.
“ A conveyance ivithout a valuable consideration cannot operate as a bargain and sale under the Statute of Uses. And
“A deed, under the Statute of Uses, can convey no title unless a good or a valuable consideration is expressed on the face of it, or, if not so expressed, can be shown aliunde.” (Spring v. Hanks, 5 Iredell, 30; 2 Washburn on Real Property, 126-131.) So, too, our own Supreme Court. (Barker v. Koneman, 13 Cal. 9, 10.)
Admitting, however, that in countries where the Statute of Uses prevails, the mere words “ bargain and sale ” in a deed do of themselves import a consideration of value, or money; still we say that they can have no such effect with us, (we not having the statute.)
Our view is, that, whereas in England and in some of the States these words are exclusively words of contract, evidencing a sale, with us they are like “grant,” “convey,” “lease,” etc., exclusively words of assurance evidencing a transfer. The deed of “ bargain and sale,” or more accurately, deeds containing the wofds “ bargain and sell,” have become the common, we may say the universal conveyances with us, and were so in April, 1850, when the Act in question passed. This was so, even before the adoption of the common law as the rule of decision. Doubtless a conveyance in the exact words of an ancient feoffment or gift in tail, would still be effective with us to pass an estate ; but as a matter of fact, all of these old forms of conveyance have become obsolete in practice, notwithstanding that we have not re-enacted the Statute of Uses, (27 Henry 8,) it is notorious that our conveyances are, as respects form, exclusively those, or more properly speaking, one of those which originated in that Act. For although we have no doubt that a “ lease and release,” “ covenant to stand seized,” or other statutory conveyance, would be as effective with us as in England, yet as they are
The truth is, deed of “ bargain and sale,” or deeds containing these words, have with us a very different operation from what they have in England, and in many of the other States. Whatever may be the effect of such words in a deed under the Statute of Uses, they are with us words of conveyance merely, and not words of contract or purchase, and operate to pass the land, not to raise a use.
Their use in the deed of Martina Castro is not inconsistent with a gratuitous conveyance or gift.
Our next position is, that whatever effect might be attributed to the words “ bargain and sell” if they stood by themselves in the deed, they, like all other legal phrases, are subject to the intention of the parties, as shown by the whole context of the instrument. And we further contend, that in the case at bar, the whole deed shows plainly, that Martina Castro intended to convey the undivided interest to Ni cano a Lajeunesse by gratuitous title, upon the cdnsideration of blood and maternal affection.
Slloan & Provines, in reply.
In attempting to make it appear that this conveyance was a gift, counsel contend that the word “ gift ” in the- Act concerning husband and wife, has not the same meaning as the same word has at common law; that our phrase “ separate property,” as applied to the wife, corresponds to the terms dotal and paraphernal property, as used in the codes of Louisiana, etc., and that the provisions of our law, in so far as it relates to the rights of property of husband and wife, were transplanted from that modification of the civil law found in Louisiana, etc. But we have seen that the phrase “ separate property ” is used in our State Constitution in its common law sense, (George v. Ransom, 15 Cal. 324,) and the word
And if these provisions of our law were borrowed from the civil law, why was not the appropriate civil law phraseology also adopted ? Why speak of property acquired by “ gift, bequest, devise, or descent,” all common law modes of acquisition ? Why speak of the wife’s “ separate-,” rather than of her “ paraphernal property ?” It cannot be that the framers of our Constitution intended to “ transplant ” civil law ideas as to rights of property as between husband and wife, and yet at the same time so studiously to avoid the civil law phraseology appropriate to express those ideas; or that they attempted to express civil law principles, and to clothe civil law ideas, in common law language. Had they intended to engraft the rules of the civil law in this particular upon our system, they might have done so by the use of a very few words, and without tedious definitions or carefully studied distinctions. Nothing, however, is said of dotal or paraphernal property, nothing of acquests and gains, nothing of community debts, nothing of donation or testament, nothing of onerous or lucrative title. These terms have no place in our law, nor can they be appropriately used with reference to any property acquired since the adoption of our Constitution and the passage of the Act in question.
That the property in question he,re was acquired in this State during the marriage, and subsequent to the passage of the Act concerning husband and wife, is admitted, and it only remains to be determined whether it was acquired by either of the common law modes mentioned in the Constitution and the Act, viz : by “gift, bequest, devise, or descent.”
The counsel admits that in England the words bargain and sell “ are exclusively words of contract evidencing a sale,” but contends that “ with us they are exclusively words of assurance evidencing a transfer." But why so ? If these are not words of contract evidencing a sale, what words are used, and
By Sawyer, J., the other members of the Court concurring specially :
This is an action for the partition of the Soquel Rancho, situate in the County of Santa Cruz. The title of the plaintiff to a one-ninth interest, as alleged in the complaint, was admitted both in the answer of Hihn and that of defendant Vandenberg, but the latter alleged that he was the owner of one ninth by title derived from Martina Castro through Francisco Young (Lajeunesse) and Mcanoa his wife, by their deed to him executed on the 31st of January, 1854. Hihn denied this claim of Vandenberg, and alleged title in himself to nine hundred and sixty (960) three thousand two hundred fortieth (3,240) parts of the rancho. The case went to a referee under an order to try the issues and report a “finding” thereon. The referee reported, among other things, that Hihn was the owner in fee simple of seventy-one two hundred seventieths of the property, and as to the remaining fractional interests, they were reported to be vested in other parties to the suit; but the claim of Vandenberg was not found either in whole or in part.
■ On the 22d of April, 1863, an interlocutory judgment was entered upon a confirmation of the report, and the case was sent to Commissioners; and on the coming in of their report a final judgment was entered in the action July 25th, 1864.
Firstly—We cannot consider the questions made upon the sufficiency of the evidence to justify the findings of the referee, for the order overruling the motion for a new trial was made eighteen months before the appeal from the order was taken. The objection that the findings were contrary to the evidence, as well as the exception to the report taken by the appellant on the ground that it did not set forth facts but mere legal conclusions, is overruled on the authority of Hihn v. Peck et als., post.
Ho appeal lay from the interlocutory judgment at the time it was entered, nor was one given by the Act of March 23d, 1864. (Gates v. Salmon, 28 Cal. 320.) But the appeal from the judgment entered upon the confirmation of the report of the Commissioners was properly taken as being the judgment in the case, having the quality of finality. (Practice Act, Sec. 336 ; Gates v. Salmon.) The point made by the respondent, that the interlocutory judgment was a final judgment, so far as Yandenberg’s title is concerned, is not in consonance with the views expressed by our predecessors in Seligman v. Kalkman, 17 Cal. 152, and is directly opposed to Gates v. Salmon. We therefore consider the appeal from the final judgment as having been well taken, considered as a matter of procedure, and that the errors of law specified in the statement on appeal are regularly here and open to review.
Secondly—It appears that the rancho belonged originally to Martina Castro as her separate property, and that she, “ in consideration of love and affection and of five dollars to her in hand paid,” conveyed one ninth of the-rancho undivided to each of her eight children, on the 29th. day of August, 1850. At that date Hicanoa Coto, one of the children, was a married woman—wife of Francisco Lajeunesse—which fact appeared on the face of the deed; and both the defendants Yandenberg and Hihn claim the one ninth deeded to her by her mother—Yandenberg by a deed purporting to have been executed to him by Lajeunesse and wife, January 21st, 1854,
The deed to Vandenberg was not properly acknowledged by Mrs. Lajeunesse, but it was claimed by Vandenberg that the one ninth be,came and was the common property of Lajeunesse and his wife under the deed of Mrs. Castro,-and, therefore, that the deed to him—Vandenberg—passed the title to the one ninth as the deed of the husband. Hihn thereupon offered to prove that no money was paid or agreed to be paid to Mrs. Castro in consideration of the conveyance to her children, but, to the contrary, that the conveyance was in consideration of love and affection alone. The testimony was objected to, the objection was overruled, and Vandenberg excepted.
It is insisted by the appellant that the ruling was erroneous, on the ground that Hihn was estopped by the deed from Martina Castro to her children from denying the money consideration therein named.
Gan parol testimony be received to shoto that the deed of a married tvoman of her separate property, expressing a consideration on its face, tvas a deed of gift ?
This ruling presents a question of vast importance to the interests of the people of California. I have, therefore, fully investigated the point, together with the cognate questions, and shall dwell at some length upon them, quoting liberally from the authorities.
It is admitted that a receipt in a deed acknowledging a payment of the consideration may be varied, or contradicted by parol evidence in an action to recover the purchase money, but, it is said, that the consideration cannot be varied by parol proof with a view to affect the operation of a deed as a conveyance, and numerous common law authorities are cited to establish this proposition. It is then assumed that, to prove that no money was paid, for the purpose of showing the conveyance to have been intended as a gift, and not a sale for a money consideration, would be to contradict the deed for
I shall first consider the common law authorities, and endeavor to ascertain the import of the rule, as it now stands, with the limitations and restrictions put upon it in the modern American decisions. But before proceeding, it is proper to remark, that the precise question now presented never did arise, and never could have arisen, under the common law system unmodified by constitutional, or statutory provisions similar to those in force in this State; and it will be hereafter seen, that the constitutional and statutory provisions modifying the common law rights of husband and wife must be allowed some force in determining the question in issue. The common law cases can only furnish analogies more or less remote, and those most nearly analogous, unless I greatly misapprehend their import, will be found to harmonize with the construction maintained in this opinion.
In the earlier cases there was some conflict as to whether • the express consideration of a deed could be contradicted by parol • evidence for any purpose, but in the great body of modern authorities it is held, that, for at least all collateral purposes, the real consideration may be shown in matters arising between parties and privies, as well as between strangers, and the rule never did apply to strangers to the deed. The question is as fully and ably discussed, perhaps, in the principal case cited by appellant’s counsel, (McCrea v. Purmort, 16 Wend. 465) where the authorities are reviewed, as in any other. In that case the Chancellor had admitted testimony to show that the consideration of the deed was iron, and not money, as expressed in the deed. The last point upon which the 'authorities divided was, that although you might show a different consideration, you could not show a consideration of a different species from that expressed in the deed, as iron in the place of money, or a good consideration, such as love and affection, as contradistinguished from a valuable one, as money or other valuable articles. But the case cited (page 471) and other modern cases show that there is no ground for this dis
“ A man is estopped by his deed to deny that he granted, or that he had a good title to the estate conveyed ; but he is not bound by the consideration expressed, because it is known to be arbitrary, and is frequently different from the real consideration of the bargain.” (Wilkinson v. Scott, 17 Mass. 257.) “ It is perfectly well settled that a consideration expressed in a deed cannot be disproved, for the purpose of defeating the conveyance, unless it be on the ground of fraud. Thus, where a consideration in money is expressed in a deed of bargain and sale, no averment is admissible that no money was paid, in order to show that nothing passed by the deed for want of a consideration in money.” (Moore v. Shattuck, 4 N. H. 232.) “ The deed to Blucker acknowledges that there was a consideration, and the grantors and those claiming under them are estopped from denying that a consideration was paid. They may disprove the payment for the purpose of recovering the
So, also, parol evidence was admissible, even between parties and privies, in a Court of equity, at least, to show that a conveyance absolute on its face was intended to be a mortgage. The operation of the deed was not defeated by showing that no interest at all passed; but it was controlled in such a manner as to effectuate the intentions of the parties. And such evidence, since the change in the forms of proceedings and in the character of mortgages, is admitted at law in this State and in New York. (Cunningham v. Hawkins, 27 Cal. 603 ; 15 New York, 374.) Thus, a change in the common
It must be confessed that the case of Brown v. Cobb, 10 Louisiana Reports, 180, upon an imperfect examination, does seem to support the view of the appellant. But the civil code of Louisiana modifies in many particulars the Spanish law as it prevailed in Mexico, and formerly in Louisiana and other Spanish-American provinces. It regulates very minutely the rights and duties of husband and wife by many provisions applicable to almost every conceivable variety of circumstances. Generally, the property may be separate or common, and the wife’s separate property may be dotal and extra dotal, or paraphernal. She may manage her paraphernal property herself, or allow her husband to manage it, or they may manage it together indifferently; and, when the wife has allowed the husband to administer it, she may withdraw it from his administration. So the husband may administer his own separate property separately, or he may mingle it with the common property. But, under all these different circumstances, the rights of the parties as to the investments of the proceeds of their separate property may vary with the circumstances. It will be found by consulting the various decisions, that, under some circumstances, property purchased with separate property will still be separate; under others, that it will be common property, with a charge upon the community property in favor of the spouse whose separate funds were used for the amount due, and a tacit mortgage to secure it. (See Louisiana Code, Articles 2,305 to 2,412.) Row, if the case of Brown v. Cobb cannot be referred to some of these
Notwithstanding the closing paragraph, “ because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase,” it is clear from the decisions under that code, that it may be shown that the consideration money came from the paraphernal property of the wife, for the purpose mf establishing the paraphernal character of the estate purchased. In the case of Dominguez v. Lee, 17 La. 297, this principle was upheld. The wife inherited one thousand one hundred dollars from her father, which came into the hands of her tutor. He having in some way misapplied the funds and being unable to pay it, conveyed to her a lot in satisfaction of a part of the demand, called, in the law phrase of Louisiana, “ a dation en paiement”—a giving in payment. The husband and wife afterward mortgaged the lot to raise funds to make improvements and ameliorations upon it. In this condition it was seized on an execution against the husband. The wife obtained an injunction against a sale on the ground that it was her separate property. It is true the Judge says in the opinion, “from the stipulation in the act of sale, the lot so received in payment became her paraphernal propertybut it is also manifest that other evidence was admitted, for the
If the two cases of Brown v. Cobb) and Comeau v. Fontenot do not depend upon the modifications made by the Louisiana code, subsequent cases clearly overrule them.
The case of Terrell v. Cutrer, 1 Rob. 367, it seems to me, squarely overrules Brown v. Cobb. The question whether parol evidence is admissible to show that the purchase'money of a slave conveyed by deed was paid out of the separate property of the wife, with a view of controlling the operation of the deed in her favor, was made and directly decided in the affirmative. The plaintiff a married woman, claimed as her separate property two slaves, which her husband had turned out to his creditors. The slaves had been purchased by the wife with funds in the hands of her husband derived from the estate of the wife’s father. It was claimed that-in, order to prevent the property purchased from becoming a part of the community, it must be declared on the part of the wife, “ by notarial act," that is, in the instrument of conveyance (or what answers to our conveyance,) itself, that she purchases for her sole account, and from what source she obtained the money given in payment. The Court say : “ On the trial it was objected that parol evidence was inadmissible to prove that the slaves ivere purchased with paraphernal funds; and the defendant tools a bill of exceptions to its admission, notwithstanding his objections. It was objected to on the ground that such proof was against and beyond ivhat ivas contained in the written contract, and could not be introduced without showing that the wife was in the actual administration of her paraphernal property. The Court, in our opinion, did not err in admitting the evidence. It does not appear to us that the evidence that the
The principle of these cases was again affirmed in Broussant v. Her Husband, et al., 11 Lou. An. 446. The slave in question had been sold to the wife, with the consent of her husband, for the price of five hundred and forty dollars, as expressed in the act of sale. There was some question as to the sufficiency of the proof to identify the source whence the purchase money was derived, and the Court thought the circumstances required “ that the case should be remanded for a new trial, and to enable the parties to furnish any further evidence in their power.” Of course it must have been evidence dehors “ the act of sale ”—the conveyance. And the same principle was again sanctioned in Gonor v. Her Husband, 11 Rob. 572. But this case is more nearly on all fours upon the precise point in question with the. case now
We will now consider the cases in Texas, where, it is understood, there have been less modifications of the Spanish law in respect to marital rights, as it prevailed in Mexico, Louisiana, Texas and California, than was made by the Louisiana Code. In Love v. Robertson, 7 Texas, 8, the contest was about two slaves between the widow, who claimed them to be common property, and the heir, who claimed them to be the separate property of the husband, his father. The purchase money of one and part of that of the other was paid out of funds, the proceeds of sales of property inherited by the husband, and the balance for the latter out of the common property. The Court cite the Spanish law and some of the Louisiana cases above cited, and say (p. 10) : “ From these cases it seems clear that property purchased with the separate or individual money of either husband or wife does not necessarily belong to the community. * * * Accordingly, in McIntyre v. Chappell, we held that negroes received by the husband during the marriage, in discharge of a debt due him for property which he had sold previous to the marriage, were his separate property. It is difficult to perceive any real distinction between this case and that. In the case of a purchase made during the marriage, it will in general be more difficult to prove the individual ownership of the money, from what source it was derived, and whose money was really employed in making the acquisition, than in the-case of the mere exchange of one article for another. A greater burden of proof will devolve on the claimant. The presumption that property purchased during the marriage was community property, would certainly be very cogent, and would require to be repelled by clear and conclusive proof. But wheu it is
In Huston v. Curl, 8 Texas, 240, the contest was between the wife, who claimed a slave as her separate property, and creditors of the husband. There was a bill of sale in the name of the wife, and evidence dehors the instrument upon the question as to who furnished the consideration. The Court say (page 242) “ It is the settled doctrine and law that property purchased during the marriage, whether the conveyance be made to the husband or wife separately, or to them jointly, is presumed to belong to the community. This presumption may be rebutted by clear and satisfactory proof that the purchase was made with the separate funds of either husband or wife, in which case it remains the separate property of the party whose money was employed in the acquisition. (Scott & Solomon v. Mangard et ux., Dallam, 548 ; McIntyre v. Chappell, 4 Texas, .187; Love and Wife v. Robertson, 7 Texas.)” So in Ross v. Houston, 11 Texas, 326, the Court say: “ The consequence is that to maintain the character of separate property it is not necessary that the property of either husband or wife should be preserved in specie or kind. It may undergo mutations and changes, and still remain separate property ; and as long as it can be clearly and indisputably traced and identified, its distinctive character ivill remain.” See, also, Parker v. Chance, where the Mexican law is cited
- In Claiborne v. Tanner, 18 Tex. 70, a deed of land to a married woman was “ for the consideration of two thousand two hundred dollars expressed therein.” Testimony was introduced showing that the consideration really paid consisted of a negro, received by the wife from her father, and a yoke of oxen, and the Supreme Court recognized the right of the wife to an interest in the land as separate property in proportion to the value of the consideration thus furnished by her. Thus, I think, it is shown by an unbroken line of decisions in Louisiana and Texas, with the exception, perhaps,
In many of the States where the- common law prevails recent statutory provisions have been made, authorizing married women to hold, as their separate property, such property as they had before marriage, and such as may come to them
So also in Maine, under the statute of 1844. (Clark v. Viles, 32 Maine, 32; Eldredge v. Preble, 34 Maine, 148.) But this harsh construction, which often throws an almost insuperable obstacle in the way of the enforcement of the rights of married women, and, in many instances, doubtless, would
Sor is there any greater force in the proposition that the wife should have her property conveyed to trustees with the necessary limitations, as at common law. Both the Constitution and the statute make her capable of taking in her own name. She is just as competent to take lands or other property in her own right as her husband. The husband and wife in this respect are not one person. The common law merger of the wife in the husband is to this extent, at least, abrogated, and they are as much two distinct legal entities as any two men. (Smith v. Strahan, 16 Tex. 321.) She not only has the capacity to take, but she has the constitutional right to take, hold and enjoy in her own name, without the intervention of trustees, and without the cumbersome machinery incident to that relation. The Constitution says: “All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired after-wards by gift, devise or descent, shall be her separate property. (Art. XI, Section 14.) And the rights of the wife upon the state of facts indicated cannot be abrogated by legislative action. Her rights depend upon the facts and the constitutional provision, and not upon the terms of the deed. Section one of the Act defining the rights of husband and wife is in the same language. There is nothing here requiring a woman
But it .may be said that the position thus far taken and sustained by the numerous decisions cited from Louisiana" and Texas may be admitted; that they are cases where the money consideration expressed has been, or may be, shown to come from a particular source; that the facts shown are not inconsistent with the recitals of the deed, and that the question is not precisely the same as that in the case at bar, where there was an expressed money consideration, and the offer was, not to show that it came from the separate property of the wife, but to show that there was no motiey consideration at all. I do not, however, perceive that there is any difference in the principle applicable to the cases. But however this may be, the decisions commented upon illustrate the subject of marital rights as they exist under our Constitution and laws, and the principles of evidence applicable to the subject. They also seem to me to. involve the same principle, and to bear distinctly upon the real questions at issue. But I shall now cite some further authorities, which appear to me to determine the precise question, and endeavor to show that it is substantially identical with that in the cases already discussed.
The case of Conception Marianna Gonor v. Simon Gonor, her husband (11 Rob. 526), was a suit for separation of property, founded upon the disorder of the ¿ffairs of her husband. The creditors of the husband intervened. The plaintiff, among other things, claimed a slave, Adelaide, and her increase, as her separate property. She alleged, “ that said slave was conveyed to her in November, 1811, by act before Pedesclaux, a Notary, by her mother; that, although the consideration or price mentioned in the act icas two hundred, dollars, the estimated value of the girl, then aged only twelve
On appeal the question was as to tlie.admissibility of the parol evidence, and the Court, after disposing of “the increase,” say, (p. 528): “It only remains then to inquire whether Adelaide became, by the purchase, the sole property of the.plaintiff or that of the community. The sale is in her name, and the vendor acknowledges that she paid the consideration.” After citing with approbation some of the cases before referred to in this opinion upon the question of introducing parol evidence to show the origin of the consideration, the Court say (p. 528): “ The case now before the Court conies within the spirit of the exception, as existing under the Spanish law, as well as the code of 1325. The act acknowledges that the plaintiff had paid the price. The parol evidence, which was properly admitted (under the restriction expressed by the» Judge), because it does not contradict the act in this respect, shows that Mrs. Vienne, the mother, made to each of her children a similar advance. It does not appear ever to have been under the control °of the
The case is as nearly identical with the one now before the Court as we could well expect to find one. The conveyance was by a mother to her daughter by notarial act, expressing a money consideration equal to the full value of the slave at the time. Yet there was in fact no money paid. It was simply an advance, or in other words, it was substantially a gift in consideration of love and affection, to be taken into consideration, it is true, in distributing the estate of the mother after her death, but nevertheless a gift. “ The mother made to each of her children a similar advance,” (p. 529.) Parol testimony was offered to contradict the expressed consideration of the deed, and was objected to by the creditors of the husband “ on the ground that parol evidence is inadmissible to vary the nature of the written contract, or to show that the contract was not a sale, as upon its face it purported to be.” The evidence was admitted, and bn appeal held to be properly admitted. The Court regard the principle as identical with that established by the cases before cited in this opinion. In the case at bar, the conveyance is from a mother to each of her eight children, conveying to bach an undivided ninth of the lands described, she retaining the remaining ninth for herself. She sets out by naming the grantees as her children, then recites the granting of the land to her by the Mexican Government, then proceeds: “ These are, therefore, to acknowledge that my before mentioned children have each an interest of one undivided ninth part of each of said ranchos, both of which are embraced in the last mentioned grant, and are entitled, under each of said grants, to the enjoyment of the same in common with me. And this indenture further witnesseth, that in order to secure fully to my said children the aforesaid interest in the above mentioned grants, I, the said Martina Castro, for and in consideration of the natural love and affection which I have and bear to my said children, and for the further sum of five dollars to me in
In Higgins v. Johnson, 20 Texas, 393, the contest was between the heirs of Mrs. Johnson, the wife of Chauncey Johnson, and the grantees and creditors of the husband. The husband bought a land certificate with funds of the community, and had it assigned to the wife. Thereupon a patent was issued for one third of a league of land, by the State of Texas to the wife, as assignee of Daniel Winchel. “ There was a bill of exceptions, showing that the defendants (the heirs of the mother) offered to prove, by witness J. S. Johnson, that Chauncey Johnson gave the land in controversy to his
This case also seems to determine the precise question. The bill of exceptions presents two questions. Firstly—Is pa/rol evidence admissible to shoio that a conveyance upon an expressed money consideration was in reaUty a gift ? Secondly —Can a husband malee a gift to the wife out of the community property so as to transmute it into separate property ? Both questions are resolved ih the affirmative, and the first question does not appear to have been regarded by the Court as open to doubt, for no breath is wasted in discussing it.
The case of Smith v. Strahan, 16 Texas, 820, already cited, is also similar in principle. The deed was to the wife on a money consideration; but it was shoion to be in reality a gift from the husband. And these casts were substantially between parties and their privies, and not strangers, the husband being the ultimate donor. Yet there ivas no estoppel against showing the transactions to be gifts and not sales. O'Brien v. Hilburn, 22 Texas, 619, also appears to be directly in point. The contest was between the wife and a purchaser from the husband. The father of the wife had purchased a slave from the'father of the husband, and then conveyed her to the wife by bill of sale under seal, which recites the conveyance to- be “for and in consideration of the sum of one dollar to me in hand paid, and also in considerationcof love and natwral affection cherished by myself toward my beloved daughter Marietta, the
Thus, it appears to me to be established by the decisions in Louisiana and Texas, that parol testimony is admissible to show that the five dollars consideration in the deed from Mrs. Castro to her daughter, Mrs. Lajeunesse, (Nicanoa Coto) was not paid ; that the blood relationship was the real consideration, and that the property by the conveyance became the separate property of Mrs. Lajeunesse ; and it further seems to . me, that the decisions rest on solid reasons. Nor do the decisions in our own State appear to me in any respect to conflict with this view, but on the contrary, so far as they bear upon the question, to sustain it. Such is the necessary implication, as already shown, from the reasoning in Meyer v. Kinzer and all subsequent cases repeating its points, and the effect of the express decision of Ramsdell v. Fuller by the present Court. And in Hart v. Stevenson, 21 Cal. 346, parol evidence was admitted under objection to show that a conveyance expressed to be upon a money consideration as well as “ regard and esteem,” was in fact a gift without any money consideration. On appeal the Court seem to have been of opinion that the evidence was properly admitted; for no disapprobation is expressed, and a part of the reasoning, and one of the alternatives upon which the decision rested, is based upon it. The
The case of Tustin v. Faught, 23 Cal. 241, cited in the briefs, is not, it seems to me, in conflict with the views here expressed. It was simply held, upon the face of the deed alone, that a conveyance “ upon, the consideration of four hundred and sixty-one dollars, money paid, as well as love and affection,” vested the title in the community, and that as common property it could be conveyed by the husband alone. Whether correct or not, it does not present the question. Coles v. Soulsby 21 Cal. 50, also cited by appellant, so far as it is applicable at all, sustains the views maintained in this opinion. The plaintiff was a married woman. On the trial a deed was introduced “ from the defendant to the plaintiff and her husband, stating that in consideration of natural love and affection, and for the sum of one dollar, he conveyed to them all his interest in the property, and surrendered all trusts and powers set forth in the second deed above mentioned. [Introduced in evidence.] The defendant then introduced, against the objection of plaintiff, evidence showing that the third deed was given and received in full settlement of all matters in difference between the parties, and proved admissions of the plaintiff to the same purport, made since its execution. Upon this evidence, the verdict and judgment passed for defendant; and the question presented by the appeal is whether this evidence was admissible "—the third objection to the admissibility being “ that it tended to contradict and vary the recitals of the deed as to its consideration.” On this point, Mr. Chief Justice Field says : “ It is not a valid objection to the admissibility of the evidence that it showed a consideration different from that expressed in the deed. The consideration clause of a deed is not conclusive. It estops the grantor from alleging that he executed the deed without consideration. It cannot be contradicted so as to defeat the operation of the
This sustains the views before expressed as to the common law authorities, that the estoppel is only between grantor and grantee, and even then limited to a particular purpose, the grantor being simply estopped from alleging that he executed the deed without consideration, and consequently estopped from denying that any beneficial interest passed by the deed. And he expressly holds that the distinction that the parol evidence must be limited to showing a consideration of the same species does not “ rest on any solid foundation.” So under this ruling a good consideration—as love and affection— may be shown when the consideration expressed is valuable— as money—-for this would not defeat the operation of the deed. And that is all that is required by the exigencies of this case. The questions in the two cases, however, are really not precisely the same.
But to make a direct application of the rule of both the common and civil law authorities as before presented, and it will be found that the case is not within any rule of exclusion established by either. There is no contest between the grantor and grantee named in the deed, and the case is without both the rule and the reason of the rule. It is betioeen the grantee and a stranger to the covenants and the language of the instrument— one who has no interest except so far as an interest arises upon a presumption of law aside from the language of the deed; for we have seen that the husband and those claiming under him are strangers to the deed—parties claiming against the nom
Again, the authorities agree that the exclusion of parol testimony under the common law rule invoked is based upon the principle of estoppel. But under our Constitution and laws, to a great extent unlike the Mexican law formerly in force, 01-even that of Louisiana, or of Texas in some respects, a married woman is not endowed with an unlimited power to bind herself by contract, or even to .contract with respect to her separate property. She can only bind herself by pursuing a prescribed mode. For this reason, also, the rule invoked, if it embraced the case, would not apply. A married woman, under our Constitution and laws, cannot deprive herself of, or pass to another the title to property which would otherwise be her separate estate by matter of estoppel, arising out of acts not performed in the prescribed mode and unaccompanied by any act constituting, fraud either in law or in fact. Conveyances to children, in consideration of love and affection—gifts or advancements—are voluntary on the part of the donor. When such a conveyance has been voluntarily executed by a father or - mother, and gratuitously tendered to a daughter, unacquainted with legal forms, who happens to be married, must she stop and critically scrutinize the instrument, and, if it happens to express a consideration of one dollar or one pepper
The principle contended for by the appellant must, I think, have been contrary to the sense of the great body of the profession prior to the case of Meyer v. Kinzer, for I do not now recollect of ever having seen a conveyance executed prior to that time, which did not express a valuable consideration, either nominal or real, in addition to that of love and affection. But whether it was the sense of the profession or not, the principles of evidence applicable to the question here maintained appear to me to be founded in good sense, and abundantly supported by authority. And in view of other principles suggested in the discussion that must be enforced, to hold the contrary would, in my judgment, be to effectually abrogate to a very great extent the provisions of the Constitution in respect to the separate property of the wife.
It appears highly probable that the admission of the parol evidence in this case will work a great hardship, resulting, not from the fact that the first grantee of Mrs. Lajeunesse relied upon the deed from the husband, but from the fact of a defective acknowledgment of the wife resulting from the mistake of the officer taking it. The party evidently was in no respect
The great importance of the question involved in this case is my apology for the extended discussion indulged in this opinion.
I am of the opinion that the" parol evidence was properly admitted.
When deed to married woman a deed of gift.
But, on the hypothesis that a deed expressing a consideration of love and affection raises a presumption, conclusive or otherwise, in favor of the wife, I am of the further, opinion that, independent of the parol evidence, the conveyance in question is, upon its face, manifestly a gift or advancement from the mother to' the daughter, and that the effect of the deed alone is to convey a separate estate. The grantees are the eight children of the grantor, and it is so expressed in the deed. The subject matter conveyed consisted of two large tracts of land granted to the mother—“ to herself and family,” as expressed in the deed—by the Mexican Government, one of said tracts being two miles in .length by a half league in breadth, the dimensions of the other not being stated. The further recitals have been already set out, showing that, in view of the grant to herself and family, and a supposed interest already existing in -the children, she was moved by these considerations and her affection for her children to make the conveyance, and not by the paltry sum of five dollars, inserted, doubtless, by. the conveyancer without suggestion from her or
So also a similar deed in “ consideration of loxTe and affection the grantor had towards the grantee (a son), and for the consideration of five dollars received to his full satisfaction,” was held by the Supreme Court of Connecticut to be upon its face a deed of gift by way of advancement. The Court say: “A deed in consideration .of love and affection is most justly presumed to be an advancement. The presumption, however, in this, as in other cases, rnay be rebutted by proof. In the case before us, if the deed to Henry A. Straight is merely a deed of gift, the estate transferred by it, within the fair construction of the statute, must be considered as advanced portion. This brings me to the principal question in the case, which is, whether anything appears to rebut the presumption of advancement. The deed to Henry A. Straight is expressed to be ‘ in consideration of love and affection, and of five dollars.’ It would be ascribing too much importance to this nominal consideration to consider it as repelling the proof of advanced portion. The principle of equity, on this construction, would be almost as much violated as if the consideration had been purely voluntary. Had the sum received by the grantor been a cent merely, it would be serious trifling
That a conveyance in consideration of love and affection is a “gift” within the meaning of the term as used in our Constitution and statute, although not a technical gift at common law, I entertain no doubt.
I think, therefore, that the construction of the conveyance in question in this case should not be controlléd on this point by Tustin v. Faught.
Thirdly—Under the view taken there was no error in admitting the testimony relating to the value of the land conveyed by Mrs. Castro to her children.
Fourthly—The question as to the admissibility of the deed of Lajeunesse and wife to Hihn, was also determined in Hihn v. Peck, post. It was well executed on its face and properly admitted. The other questions argued, founded upon this deed and the testimony introduced for- the purpose of avoiding it and defeating its operation, go to the correctness of the findings of fact, and do not arise on this record.
Ho error appearing, the judgment must be affirmed, and it is so ordered.
Mr. Justice Sanderson delivered the following opinion, concurring specially, in which Mr. Chief Justice Cürrey, Mr. Justice Shaeter, and Mi*. Justice Rhodes concurred :
As .to the admissibility of parol evidence to explain the effect of the deed from Martina Castro to her children, we deem it unnecessary to express an opinion, for the reason that it is, in our judgment, a deed of gift upon its face, and, therefore, stands in no need of explanation. On this and the remaining grounds discussed in the opinion, we concur in the judgment.