221 P. 213 | Ariz. | 1923
The plaintiff in this action, appellee here, describing herself as Mary Ellen Brown, seeks to set aside two deeds made by one Thomas P. Brown in his lifetime, conveying property situated in No-gales, Arizona, to his daughter, Abbie I. Pendleton, one of the defendants in the action, and for an accounting of rents and profits received by defendant from said lands. The plaintiff bases her action upon the claim that she is the surviving widow of Thomas P. Brown, who died intestate, and that the lands in question are the community estate of herself and Brown, and that she did not join in executing the deeds of conveyance.
It may be admitted, though not beyond dispute, that Thomas P. Brown and the plaintiff intermarried in the state of Michigan in 1875. In 1878 they removed to the state of Texas, where they separated, the plaintiff deserting her home and taking with her their infant daughter and $800 in cash, the property of Brown, and going to Arizona, where without divorce she lived with another man as his wife in the town of Tombstone. Soon afterward Brown also removed to Arizona, and for a time they both resided at Tombstone, or in that vicinity. Brown seems to have there sought a reconciliation with plaintiff, but later finding that she was living in adultery, the separation between them became definite and permanent, followed by a property settlement and an
About ten years after their separation, Brown heard that plaintiff, in company with a man named Arehibel, had been killed in a railway accident, and afterwards, acting upon the belief that such report was true, again married. Of such marriage there was born one son, still living. In 1915 Brown, then living in Oakland, California, heard directly for the first time since 1880 from the plaintiff, who then bore the name of Harris. In 1917 plaintiff, then claiming to be the wife of Brown, brought suit against him for separate maintenance. This action was dismissed. In 1918 she sued him for a divorce. An application for suit money in connection with that cause was denied and the cause lay dormant until the death of Brown in 1920 in Oakland, California. All these proceedings were in the courts of California. This cause was begun in 1921.
The evidence in this case established beyond cavil that the plaintiff is not the surviving widow of Brown; but that in 1902, in the state of Michigan, then claiming to be a widow and under the name of May Arehibel, she intermarried with one Norman Harris, who died in 1911. The plaintiff throughout prolonged and persistent cross-examination refused to disclose the significance of the name Arehibel, how long she had borne it, or when she attained the status of widow before her marriage with Harris, and denied her marriage to Harris, but consistent with the allegations of her complaint persisted in the assump
During the long period of time from 1880, when she separated from Brown and left Arizona, until 1902, when she married Harris, plaintiff offers the most meager and reluctant account of her life and her whereabouts. When asked on cross-examination if she were not living at one time with a man named Archibel, the name under which she married Harris, she answered, “Hunt the records of the United States and see if you can find it. ’ ’ She denied having borne the name of Archibel. In further description of her life during that period she said, “I was back and forth and all around.” She seems to have lived in many states during that period, including Michigan, Colorado, the territory of New Mexico, and others; but does not claim to have ever returned to Arizona.
The dissolution of the marriage relation between plaintiff and Brown appears only from the presumption which arises from her marriage to Harris in 1902, and from her claim made previous to that time that she was a widow having the name of Archibel. There is no direct evidence of a divorce. The presumption of divorce cannot extend beyond or antedate the circumstances upon wMch that presumption rests. All these circumstances appear to have occurred in 1902. Since she was a widow at that time, it must be supposed that a considerable period of time was required in wMch she procured a divorce from Brown and became the wife and afterwards the widow of Archibel; but we have no right to conclude that she became divorced or that she became the wife of Archibel as early as 1900, the date when Brown acquired the property in question. We have
Besting upon that fact, the trial court decided that the land became impressed with the character of community property to which plaintiff might legally assert a claim, notwithstanding the property settlement and agreement of separation between the two, the adultery and abandonment of plaintiff, her prolonged residence and divorce in a foreign jurisdiction, her remarriage and her tardy assertion of her claims.
This action is based upon the proposition that while the marital relation remains undissolved, all property acquired by the husband during such relationship is community property, to which the wife is entitled in such proportion as the statute gives to her, unaffected by either her conduct or her contract, and that a deed to such property in which she does not join is invalid to bar her interest. Property acquired by Brown before the abandonment of the plaintiff and the agreement of separation is not involved. The questions raised here are: Was the property acquired by Brown twenty years after the abandonment of the wife and the agreement of separation and division of property impressed with the character of community property? And was the husband without authority, under the circumstances then existing, to alone convey such property? The character of the property, as to being separate or community, becomes fixed at the time it is acquired, and if it be community property, the wife’s interest in it is vested at that time. It is our view of the law in the premises that the wife by her conduct had barred herself from any claim to this property, and that by her contract and the division and partition of the community estate between herself and Brown she
The appellants urge that the circumstances of this case are governed by the rule of the Spanish law, the immediate source of our community property regulation. By that law, at one time at least, the adultery and abandonment of the wife worked a complete forfeiture of all her community pro'perty rights, including accumulations already made as well as all subsequent gains made by the abandoned husband. This rigorous rule has long since been changed in the jurisdiction of its origin.
Much argument and citation are indulged in by counsel on both sides upon the question as to whether or not the principles of the common or the Spanish law should interpret the community property statutes. The terms in which the legislature has adopted the common law do not necessarily exclude the application of all principles of the Spanish law, provided they are applicable to customs or enactments adopted from that law, and which are not inconsistent with the law^ and customs of this state (paragraph 5555 of the Civil Code); but the rule which appellants would have us adopt is inconsistent with both the laws and customs of this state. The statutes of this state make the adultery and abandonment of the wife, when judicially determined, work a forfeiture of all subsequent marital rights, including both status and property. It does not, however, impose as a penalty the loss of all property rights already gained. The exaction of the penalty which appellants urge upon us as authorized by the Spanish law is directly in conflict with the laws of this state, however it might be affected by the principles of the common law. Community property grows out of and depends upon the marriage relation. The regulation, therefore, of the marriage relation by statute, by common law, and
The evidence leaves no question as to plaintiff’s adultery and abandonment. So far as it was possible for her to do so, she renounced and repudiated her marriage relation with Brown in 1880, and never afterwards indicated any change of purpose. She immediately removed to a foreign jurisdiction; Brown remained and continued for many years to reside in the same general locality of the place of separation. Plaintiff says in her testimony that Brown was “always too glad to get me back.” The agreement of separation and the circumstances under which it was made have a bearing upon this question, as well as defining property rights with which that agreement deals. When Brown had discovered his wife in cohabitation with another man, he said to her, “Well, I am through with you. This is where we split blankets,” to which the plaintiff answered, “Oh, no; what about the property in Michigan? I want my part of that.” To which Brown responded, “Well, we will have an agreement.” Thereupon such an agreement was prepared In writing and signed by the two. This writing was not in evidence, and its
“"We agreed to live separate and apart, and I should never support her any more or pay any of her bills; that she was never to molest me or to come where I was.”
Whatever view may be taken of the effect of this writing to dispose of property rights, there is no uncertainty whatever as to the intention of the parties who signed the writing with reference to subsequent cohabitation. Following this agreement, plaintiff left the territory of Arizona, pursued her own way in life, dissolved at some time or other the marital relation between herself and Brown, and subsequently contracted two marriages before she returns to reap the fruits of Brown’s labors forty years later.
The equal division of gains arising during the marriage relation is manifestly based upon contribution of some sort or other to the marital community, out of which those gains arise/ The language of the courts and law-writers upon the subject is that the labors contributed by each are presumed to be equal, not of like sort, but of such sort as the several members of the community, depending upon their station in life, circumstances, and surroundings are wont and expected to contribute to the profit and welfare of the marital community and the integrity of the home. Whatever other functions the wife performs, she is withal the companion of her husband and the mother of his children.
It would be humiliating to the wife and belittling to the dignity of her position to assume that her abandonment of the home is not such a wrong to the marital community as affects her property rights, and that following the abandonment she is entitled to receive, equally with the wife who has remained faithful to her marital obligations, her full share unaf
That the law of Spain regarded the wife as necessarily a present and active factor in the community is shown by the fact that when some other than the lawful wife stood in her place in the household, she was designated as the putative wife, and as such was entitled to the wife’s share of community property.
While the common law did not divest the wife of her dower right because of misconduct on her part, the Statutes of Westminister 2, I Edward, 13, enacted in the thirteenth century, provided that adultery, accompanied by elopement and uncondoned by the husband, operated to bar the right of dower. The rule of that statute has been either accepted as a part of the common law or enacted into statute in probably every state of the Union which retains the right of dower.
The state of Texas, before adopting for every purpose the common law, gave effect to the early Spanish law. The case of Wheat v. Owens, 15 Tex. 241, 65 Am. Dec. 164, held that the abandonment and adultery of the wife forfeited her right to community gains. Subsequently after the adoption of the common law by Texas, Routh v. Routh, 57 Tex. 589, held that as to community property already accumulated, the divorce and adultery of the wife did not affect her interest, leaving the question as to its effect upon subsequently acquired property unsettled. In numerous cases the courts of Texas since that time, as well as before, have held that the abandonment of the wife forfeits her right to the homestead, and that after such abandonment the husband may alone convey the homestead; and the same rule obtains in many other jurisdictions both where the community system obtains and where the right of dower exists.
In the case of Starrett v. Wynn, 17 Serg. & R. 130, 17 Am. Dec. 654, the controversy was over the disposition by will of certain property by an abandoned wife. The opinion of the court is, in part, as follows:
*614 “The testimony would have justified the jury in finding that Mary Starrett had been abandoned by her husband Samuel Gibson. The fact of abandonment as being found by the jury, raises a question of some novelty, as well as of great importance to femes covert, whether property acquired during the time of the desertion can be disposed of by the wife, by will or otherwise. In other words, is property acquired under such circumstances separate estate, and as such, subject to her disposition? It is conceded, that the control of the husband over the personal property of the wife, during coverture, is an important privilege, and well-established right, of which
The argument of this cause has assumed that the right of the husband to convey, as well as his right to use the proceeds of the conveyance as his separate property, free and clear of any claim to it on the part of the plaintiff, are identical questions; but there is a distinction between the power of the hus
The effect of such a rule of restraint upon the exchange and transfer of property by the husband would be to render the husband incapable of performing those other obligations which the laws of both Grod and man have cast upon him, the care and
In the case of Garrozi v. Dastas, 204 U. S. 64, 51 L. Ed. 369, 27 Sup. Ct. Rep. 224 (see, also, Rose’s U. S. Notes), Chief Justice WHITE discusses the law of community property and says:
“For, however derived, the very foundation of the community and its efficacious existence depend on the power of the husband, during the marriage, over the community, and his right, in the absence of . . . express legislative restriction, to deal with the community and its assets as the owner thereof. The purpose of the community, as expounded from the earliest times, whilst securing to the wife on the dissolution of the marriage an equal portion of the net results of the common industry, common economy and common sacrifice, was yet, as a matter of necessity, during the existence of the community, not to render the community inept and valueless to both parties by weakening the marital power of the husband as to his expenditures and contracts, so as to cause him to be a mere limited and consequently inefficient agent.”
The statute directs that the “husband and wife must join in all deeds and mortgages affecting real estate, except unpatented mining claims,” but that
Texas by Constitution and statute has provided that the homestead shall not be conveyed without -the consent and signature of the wife; but Texas courts, following precedents of other states, have held that when the wife repudiates and abandons the home and family, the husband may convey the homestead alone. One who renounces a status loses with it the benefits which are incident to that status, and courts will not award the benefits to one who had repudiated the thing out of which such benefits arise. Community property is conditioned upon the marital relation. One who repudiates and abandons the marital relation, repudiates and abandons the rights which grow out of and are conditioned upon such relation. Such a one cannot claim judicial relief from the consequences of her own wrong.
The deeds which plaintiff asks to have set aside are in form deeds of gift. In the course of the trial defendants moved for leave to so amend their answer as to include in it an allegation that the conveyances were made in consideration of care and support of Brown during the later years of his life. This motion was denied, and evidence offered to establish the allegation was excluded. The right to amend pleadings in the course of a trial must, of course,
Is the adultery and abandonment of the plaintiff available as a defense in this case to show not only the right of Brown to make the conveyance, hut also to show that the property conveyed was not community property? Had Brown sought relief by means of an action of divorce with the evidence in this case upon these points, he would have been adjudged entitled to the land in dispute as a matter of course. Had plaintiff attempted to assert her claims to this property while it still stood in the name of Brown, as she might have done, unquestionably Brown would have been entitled to and could have successfully interposed as a defense to her claim her adultery and abandonment. Had the property question arisen in a divorce suit between Brown and the plaintiff, the disposition of the property would have been certain and simple. The plaintiff became divorced as early as 1902, with no adjudication of property rights between herself and Brown; so that any property which would otherwise, and previous to such divorce, have been community property, was left to the two former spouses as tenants in common. The failure to litigate the property question in the divorce suit was the fault of the plaintiff for which Brown was in no way responsible. The divorce action was in a foreign jurisdiction, and without notice to Brown. He could not have appeared had he desired to do so. Manifestly the plaintiff could not rightly acquire any advantage in bringing her
Aside from the light which the written agreement throws upon the separation, there remains to be considered its direct contractual effect. Did it, together with the conveyance to the plaintiff of the land in question, and her acceptance of such conveyance, operate as a relinquishment of all claims which she might otherwise have had in future gains of the husband? Neither the original writing nor a copy of it was introduced in evidence. Some form of this writing, original or otherwise, at one time in the possession of Brown, was destroyed by fire. Another form of the contract was in the possession of the plaintiff as late as 1916. Demand was made upon the plaintiff to produce this writing that it might be offered in evidence. To this demand plaintiff answered that there was no such writing, and never had been.
The defendant, Pendleton, was then permitted to testify that at a hearing in 1918, in the superior court of San Francisco, California, upon an application by plaintiff for suit money in her action for divorce against Brown, Brown testified that the form of the agreement of separation - which he once had was destroyed by fire, and that the agreement, referring to the plaintiff and Brown, recited, “We agreed to live separate and apart, and I should never support her any more or pay any of her bills; that she was never to molest me or come where I was”; and that coincident with the execution of this agreement, Brown conveyed to plaintiff his farm in Michigan. It is impossible to gather from the testimony whether anything was left to Brown after parting with his property; nor is there any evidence concerning his property until he acquired the land in question twenty years later; nor is there any evidence that subsequent to that time he owned anything besides this land; nor does it appear whether the agreement of separation contemplated that the plaintiff should support the infant daughter of herself and Brown which she took with her; nor is there any evidence concerning the disposition of the child, so that it does not in any way affect the questions involved. The evidence discloses that the plaintiff received from Brown all that she asked for, and there is no intimation that the settlement was not fair as be
By this agreement plaintiff covenants that she will never molest Brown or come where he was. She places an impassable barrier between herself and Brown which makes communication impossible, and the consideration of property agreements out of the question. If plaintiff ever had any interest in this property, it became fixed as a tenancy in common with Brown at the time of her divorce in 1902, or earlier. This property was gained by Brown after the separation, and during the time when she had agreed to leave him unmolested and make no pecuniary demand upon him. She could not have taken this property from Brown then without violating this agreement. She has no greater claim upon it now than she had then. Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Batla v. Batla (Tex. Civ. App.), 51 S. W. 664; Corrigan v. Goss (Tex. Civ. App.), 160 S. W. 652. In the last case the opinion contains a statement of findings of fact made by the trial court. Those findings, so far as they relate to a contract of separation, were, first, a complete and definite separation; followed, second, by an agreement to permanently separate and divide their property; third, that the division of the property made “was equal and fair” and-that the wife received and held that portion of it as
The parallel between the facts of that case and the one at bar is not hard to trace. The portion of the property assigned to the plaintiff was all that she asked for; it was fair and equitable so far at least as she was concerned. If it was not all that the two parties then had, there is at least no reliable evidence to the contrary. The undisputed facts clearly indicate that the conveyance of the Michigan farm
It is elementary that courts will adopt a construction given to a contract by the parties themselves, unless such construction does violence to the express terms of the writing. This rule is especially applicable where such interpretation has extended over a long period of time. It is certain from the evidence that as early as 1902 plaintiff had recourse to the courts to settle her marital difficulties with Brown, out of which there is presumed to have proceeded a decree of divorce, but with no adjudication of property rights. This litigation was in some jurisdiction foreign to the residence of Brown. Brown was entitled to have all controversies between himself and the plaintiff, growing out of their marital relation, adjudicated in one action. We have a right to assume that the plaintiff did adjudicate all causes of action arising out of the marital relation which plaintiff conceived herself entitled to, and her failure to have any property rights litigated at that time indicates that she believed all such rights had been fully disposed of in the agreement of separation. The failure of the plaintiff to assert the claim which she now makes in the course of her action for divorce is fruitful of consequences in this lawsuit. There is not wanting authority to the effect that her failure to do so is an effectual bar to her assertion of the claim at this time.
In the case of Bedal v. Sake, 10 Idaho, 270, 66 L. R. A. 60, 77 Pac. 638, the facts were that the plaintiff left her husband in the state of Idaho and removed to Washington, where she obtained a decree of divorce and remarried. After a few years she returned to the state of Idaho, and sought to recover from her divorced husband community property ac
Plaintiff is making her claim upon her bald legal right to the property under the rule of the statute, unaffected by either her conduct or her contract, and directly in the face of every equitable consideration. The plaintiff seeks at the very threshold to impose a fraud upon the court by representing herself as the widow of Brown. Proceeding upon this false basis, she asks the court to give her property she did not help to accumulate, which was acquired by Brown; property by which Brown seeks to make provision for one of his children. It may well be doubted whether the jurisdiction of a court of equity should be successfully invoked in a case based upon fraud and supported largely by evidence which the trial court found to be perjured.
The defense in this cause was hampered and crippled by the lack of evidence, which had been obscured or totally lost during the long time which had elapsed before the commencement of this suit. Brown’s copy of the agreement of separation had been destroyed. Brown himself, the chief witness, had died. After plaintiff discovered that Brown had lost his copy of
“Where a suitor before proceeding permits such a lapse of time that the evidence has become obscured or lost, relief will be denied because of the difficulty of doing justice. ... A specific application of the general rule just stated is in the refusal of the courts to afford relief to one who has lain idly by until the important witnesses to the transactions involved have died. Of course the result is the same where the testimony so lost is that of participants in the transaction, who would be parties to the suit had they lived; but where such parties die there are usually difficulties presented in procuring evidence and conducting the case, other than those arising from the loss of their own testimony, and relief is denied for that reason.”
“A court of equity which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith and a reasonable diligence; where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court. Smith v. Clay, Amb. R. 645.” Cranmer v. McSwords, 24 W. Va. 594; Lutjen v. Lutjen, 64 N. J. Eq. 773, 53 Atl. 625.
The cause is reversed and the superior court is directed to dismiss it.
McALISTER, C. J., and ROSS, J., concur.