12 Cal. 216 | Cal. | 1859
delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.
It is clear that the two lots in question were purchased by the husband with funds owned by him previous to his marriage with the plaintiff. This he expressly states in his examination, and there is nothing disclosed by the record which contradicts his testimony. In this separate property of his, the plaintiff possessed no interest which the law could protect so as to restrain his power of absolute disposition, whether by sale or gift. The purchase of the lots and taking the conveyance in the name of his children by a previous marriage, was not in fraud of any rights of the plaintiff. She had no claim upon the funds thus applied. They were ¡the husband’s previous to the marriage, and no interest passed to the wife by that event. The gift to the children was an advancement for their benefit, and was not forbidden by the letter or policy of the law.
But as to the building upon the lots, the case is different. The building was erected long after their purchase, and with funds which constituted common property. It is true, the evidence of the husband tends to show that a portion of the funds thus used were his separate property, but its general effect, when considered in connection with
The law of this State in relation to the rights of husband and wife, as to the common property, is similar to the law of Louisiana and Texas ; and in those States it is held, by their highest tribunals, that all property acquired, by either spouse, during the existence of the community, is presumed to belong to it, and that this presumption can only be overcome by clear and satisfactory proof that it was acquired by the separate funds of one or the other; and that the burden of proof lies upon the party claiming the property as separate. Lott v. Leach, 5 Texas, 394; Houston v. Civil, 8 Texas, 242 ; Gilliard v. Chesney, 13 Texas, 337; Chapman v. Allen, 15 Texas, 278; Claiborne v. Tanner, 18 Texas, 69; Ford v. Ford, 1 Louisiana, 207; Dominguez v. Lee, 17 Louisiana, 290 ; Smalley v. Lawrence, 9 Rob. 214; Fisher v. Gordy, 2 La. Ann. 763 ; Webb v. Peck, 7 Ann. 92.
In a case decided at the present term, (Meyer v. Kinzer and wife) we have had occasion to consider whether the possession of property by either spouse during the existence of the community, acquired by purchase, created a presumption that the property was common; and we arrived at a conclusion similar to that of the Louisiana and Texas cases, that the presumption of the law is, that all property belongs to the community, which can be repelled only by clear and decisive proof that it was either owned before maraiage, or subsequently acquired in one of the particular ways designated in the statute; that is, by gift, bequest, devise or descent, or was taken in exchange for, or in the investment, or as the price of such property, so originally owned or acquired; and that the proof rests upon the party asserting the right.
In the present case, the building was erected during the existence of the community, and the presumption that it ivas but the form in which the common property was invested, is too cogent to be overcome by the loose and unsatisfactory evidence contained in the record. If the separate property of the husband did, in fact, go into the building, it was essential to the preservation of its separate character, that it should have been clearly and indisputably traced by him.
The law, in vesting in the husband the absolute power of disposition
In Beard v. Knox, (5 Cal. 252) this Court held that the common property could not be disposed of by the husband by will, so as to defeat the rights of the surviving wife; and the same doctrine is maintained in the matter of Buchanan’s Estate, (8 Cal. 507). In the first case, the Court said : “ Our statute has done away with the common law right of dower, and substituted in its place a half interest in the common property. This liberal provision was intended for the benefit of the wife, and the intention of so humane and beneficent a law should not be defeated, by adopting a rule of construction which would leave the future maintenance of herself and family entirely at the caprice of the husband.”
Voluntary conveyances, given on the eve of marriage, for the purpose of depriving the intended wife of her right of dower, where that
It follows, therefore, that the plaintiff, upon the dissolution of the community, was entitled to one-half of the building erected out of the funds of the common property ; and, as the title of the land is vested in the children, the separate value of the house and land should be first determined, and a sale then decreed of 'both, with directions to pay to her one-half of such proportionate part of the proceeds as the value of the house bears to the entire property, the balance and the proceeds of the land being placed in the hands of guardians of the children, and invested, under the direction of the Court, for their benefit. The husband having deliberately placed the building upon the property of his children, cannot himself have any claim upon it or its proceeds. Its character as common property is declared only for the protection of the interest of the wife.
Judgment reversed, and cause reminded for further proceedings in accordance with this opinion.