48 Cal. 358 | Cal. | 1874
Lead Opinion
The action is ejectment, and the plaintiff having rested, the defendant moved for a nonsuit, which motion was denied, and the defendant not offering any evidence, judgment was rendered for the plaintiff.
To establish his right to recover, the plaintiff gave evidence tending to prove that, in 1855 or 1856, one Treat was in possession of the premises in controversy, and while so in possession conveyed them to one Reis; that in 1867, Reis, in consideration of two thousand four hundred dollars paid by plaintiff, conveyed the premises to Alice H. Swain, the wife of the plaintiff, “as her separate property, and to and for her sole and separate use, benefit and be-hoof,” etc.; that in 1868-9, the plaintiff caused the premises to be inclosed with a fence, etc.; and that in 1871 the City and County of San Francisco made tb the wife of the plaintiff a quitclaim deed of the premises.
1. The conveyance from Reis to Alice H. Swain, made in June, 1867, though made for a valuable consideration paid
It is not doubted that a creditor of the husband seeking to subject the property to the payment of his debt, or indeed, any person having an interest in the question, upon proper allegation, and impleading the wife as a party, might institute an inquiry into the true nature of the transaction in which the conveyance to her originated; but the case at bar is not one of that character, and the legal import of the conveyance, appearing on its face, cannot be displaced or overcome by proof ab extra.
2. The wife being seized of the premises, as of her separate estate, the building of the fence, and other acts of possession done by her husband.in 1868-9, must be considered to have been done by him as her agent, for her benefit, and in subordination to her title, and not as independent acts of possession for his own benefit, or in hostility to her title.
3. The effect of the quitclaim deed of the city to Alice, made in 1871, purporting to convey to her the same premises, was merely to aid and assure the title and possession which she then already held under the conveyance from Eeis.
It results that the plaintiff did not establish in himself a right to recover the possession of the premises, and the nonsuit should have been granted.
Judgment reversed and cause remanded for a new trial.
Concurrence Opinion
I am of the opinion that the deed from the city to Alice H. Swain is to be regarded as a donation, and that it conveyed to her, as her separate property, whatever title the city then held.
McKinstry, J., concurring specially:
I concur in the judgment.