Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 13 Cal. 495 at 501.
Original Opinion of April 1859, Reported at: 13 Cal. 495.
JUDGES: On petition for rehearing, the following opinion was delivered by Baldwin, J. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, the following opinion was delivered by Baldwin, J.--Terry, C. J. concurring:
The rehearing is denied. The main ground of reversal was the instruction of the Court, that whether Mrs. Wilson entered under Ford or not--which was a disputed fact before the jury--if the defendants (Mrs. Wilson being one) disclaimed title to induce Perkins to waive his lien and take a mortgage from Ford, this estopped her from contesting the title of plaintiffs, deraigned through Ford. We meant to assert, and think we sustained the proposition by reason and authority, that a feme covert, under our statute, cannot divest her separate estate in any other mode than that pointed out by the Act; for to hold otherwise, would be to hold that the statute, where it says that the estate shall only be divested by joint deed of husband and wife, means that it may be divested by estoppel in pais .
As this error is sufficient to reverse the judgment, we so modify the opinion as to leave the other points discussed in it open to future discussion, as it is suggested, with some plausibility, that a fuller examination may throw some light upon the questions, and the facts can be more fully presented.