In Heney v. Pesoli, 109 Cal. 53 [41 P. 819, 821], it was said: "Assuming, then, that the property was purchased by the plaintiff as and for her separate property, and that her husband paid no part of the purchase price, we do not find in the mere fact that her husband joined with her in a note and mortgage to secure a part of the purchase price, but paid nothing on account thereof, anything to rebut the deduction that it was and is the separate property of the plaintiff."Summary of this case from Phelps v. Davies
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.
The burden of proof was upon plaintiff to prove title in herself at the commencement of the action. (Winter v. McMillan , 87 Cal. 256, 261; 22 Am. St. Rep. 243; San Francisco v. Ellis , 54 Cal. 72.) Plaintiff's title had passed to Jordan under the contract of sale, and she could not maintain the action. (Cranmer v. Porter , 41 Cal. 466.) The fact that Jordan was in possession is prima facie evidence of his title in fee. (Hill v. Draper, 10 Barb. 458; McGovern v. Mowry , 91 Cal. 383.) Defendant had the right to prove the contract and to show that the terms of the contract had been complied with, and that the title had passed. (Cannon v. Handley , 72 Cal. 133, 140, 141; McDonald v. Huff , 77 Cal. 279; Haag v. Delorme , 30 Wis. 592.) The title became community property to the extent of the joint mortgage of plaintiff and her husband. (Schuyler v. Broughton , 70 Cal. 282.) The wife became a tenant in common with the husband in proportion of the separate estate to the whole purchase price. (In re Bauer , 79 Cal. 309; Loring v. Stuart , 79 Cal. 200, 202.)
H. W. Bradley, and Donzel Stoney, for Appellants.
Ash & Mathews, for Respondent.
It was not necessary that the plaintiff should prove that he had not parted with his title. (Eltzroth v. Ryan , 89 Cal. 135, 139; Kidder v. Stevens , 60 Cal. 414.) Possession by the plaintiff at the time of the commencement of the action is not material. (Pearson v. Creed , 78 Cal. 144, 146; Leet v. Rider , 48 Cal. 623.) Plaintiff need not be the owner in fee, but may maintain the action on any interest or title. (Stoddart v. Burge , 53 Cal. 394; Rough v. Simmons , 65 Cal. 227; Pierce v. Felter , 53 Cal. 19; Kittle v. Bellegarde , 86 Cal. 556, 564; McKinnie v. Shaffer , 74 Cal. 614, 616; McGovern v. Mowry , 91 Cal. 383, 385; Tripp v. Duane , 74 Cal. 85.) Simple right to possession is sufficient to maintain the action. (Pennie v. Hildreth , 81 Cal. 127; Miller v. Luco , 80 Cal. 257.) The presumption and proof showed that the property was separate property, and it appeared that the title remained in the plaintiff, and the contract with Jordan was not material evidence.
JUDGES: Searls, C. Vanclief, C., and Britt, C., concurred. McFarland, J., Temple, J., Henshaw, J.
This is an action to quiet the title of plaintiff to a city lot upon the easterly side of Gough street, city and county of San Francisco. Plaintiff had judgment quieting her title as prayed in her complaint, from which judgment defendant, Charles E. Pesoli, appeals. The appeal was taken within sixty days next after the rendition of judgment, and the record contains a bill of exceptions setting out evidence introduced at the trial.
Anna Heney was, at all the times herein mentioned, up to November, 1894, a married woman, the wife of W. J. Heney, who departed this life in said month of November, 1894. Defendant Pesoli was a creditor of W. J. Heney, and on the third day of November, 1893, he brought suit in the superior court, in and [41 P. 820] for the city and county of San Francisco, against said W. J. Heney, to recover the sum of $ 1,000, and interest thereon, and at the same time caused a writ of attachment against the property of said W. J. Heney to issue, which writ was levied upon the lot of land in dispute in this action.
Such proceedings were had in the action of Pesoli v. W. J. Heney that, on the twenty-third day of May, 1894, the superior court aforesaid duly rendered and entered a judgment in said cause in favor of said Charles E. Pesoli, and against said W. J. Heney, for $ 1,090.78, together with costs, etc., which judgment and the lien thereof, and the lien of said attachment as merged in the judgment, constitute, so far as appears, the only claim or interest of the defendant and appellant herein in and to the property in dispute.
The theory of defendant was and is, that the land in question was the community property of W. J. Heney and Anna, his wife, and that as such it was subject to the payment of the debts of W. J. Heney, the husband, and to the lien of defendant's judgment, which is still in full force and vigor.
Plaintiff, on the other hand, claims that the property in question was purchased by her on the twenty-eighth day of May, 1889, and the title thereto taken in her own name and as her separate property and estate, and paid for with her separate means.
The court found that on the third day of November, 1893, and for a long time prior thereto, plaintiff was the owner of and in possession of the land and premises, and that at the time of the commencement of the action she was the owner and holder of the legal title thereto; that said land, premises, and the improvements thereon, were purchased and acquired by plaintiff on May 28, 1889, in her own name and as her separate property and estate, with her separate means; that it was and is her separate property and estate, and that her husband, W. J. Heney, never acquired or had any interest or estate therein, and that it was not the community property of plaintiff and her husband, was not purchased or acquired with community funds, and that her husband, W. J. Heney, never had any community interest therein, and that it was not subject or liable at any time to attachment, or lien, or judgment, or execution as the property of W. J. Heney, and that the defendant has no lien thereon.
There was testimony tending to show that in May, 1889, the plaintiff, Anna J. Heney, purchased the property from one Lyman C. Park, for $ 15,000, and paid $ 4,000 in cash from her separate funds, was to pay some $ 3,000 and interest at the end of one year, and assumed the payment of a mortgage thereon for $ 7,500, and received a deed from said Park to her and in her name, under date of May 28, 1889, which was duly acknowledged and recorded May 28, 1890. Plaintiff went into possession of the property at the date of her purchase in 1889. There was evidence tending to show that on the twenty-eighth day of May, 1890, plaintiff and her husband mortgaged the property to the "Vallejo Commercial Bank," to secure the payment of their joint and several promissory note for $ 11,000 and interest. This last mortgage covered some two or three other lots of land in San Francisco owned by plaintiff, and standing in her name, and which she testified were her separate property.
The existing mortgage upon the lot here in dispute seems to have been taken up when this $ 11,000 mortgage was given. The evidence tended to show that, at the date of the purchase of the lot in dispute, W. J. Heney declared it was as and for his wife's separate property that the purchase was made, and that her money was to pay for it. It was also shown that prior thereto, and at the date of such purchase, W. J. Heney was solvent.
On the part of defendant there was evidence tending to show that on or about March 18, 1894, plaintiff and her husband entered into a written agreement with one William H. Jordan for the sale of the premises in dispute to the latter for $ 15,800, to be paid in installments, the purchaser to assume the mortgage to the Vallejo bank, which had been reduced by plaintiff to $ 10,000.
A deed of conveyance was executed by plaintiff and her husband, and deposited in escrow, to be delivered to Jordan when the last payment of purchase money was made. The purchase money had not all been paid at the date of the trial, and the deed had not been delivered. Jordan went into possession when the agreement was executed. The written agreement was objected to by plaintiff and ruled out as evidence by the court, but its contents were substantially proven by parol, without objection.
Defendant introduced his judgment-roll in his action against W. J. Heney, showing his lien upon the property, provided said Heney had any interest therein subject to such lien. Counsel for appellant make three points upon which they urge a reversal of the judgment, viz: 1. That plaintiff failed to show title in herself; 2. That plaintiff's title had passed to W. H. Jordan; 3. That the property was community property, having been purchased with community funds, and therefore W. J. Heney had a leviable interest in said premises.
The first and second points really involve the same proposition, and may be put in the form of an interrogatory thus: Had plaintiff title to the land at the date of suit brought? We do not doubt but that, in an action to quiet title, the burden rests upon the plaintiff to show title in himself, and if he fails to make out a case he is not entitled to recover. (Winter v. McMillan , 87 Cal. 256; 22 Am. St. Rep. 243; San Francisco v. Ellis , 54 Cal. 72.) Possession was also formerly necessary to enable a party to maintain an action to quiet title, but, under section 738 of the Code of Civil Procedure, is not now required.
Plaintiff, according to the evidence, received a deed to the land in her own name from Park dated in May, 1889, but which was [41 P. 821] probably not delivered until the date of her last payment in May, 1890. This (waiving for the present the question as to whom the title inured) vested the legal title to the premises in her, and as the agreement to convey to Jordan, and the execution and placing in escrow of a deed to him to be delivered upon making payment of the purchase price, did not have the effect of vesting title in him until payment was made and the deed delivered, it must be held that at the date of suit brought, and at the date of the trial, as payment in full had not yet been made, and no delivery of the deed had been had, the title remained in the plaintiff.
The more important question for consideration in the case is as to whether the premises, upon being conveyed to plaintiff, became and were the community property of said plaintiff and her husband, and hence subject to the lien of defendant's judgment.
" All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property." (Civ. Code, sec. 162.)
Section 163 contains a like provision in regard to the separate property of the husband. Section 164 was amended March 18, 1889, which amendment took effect May 19, 1889 (Stats. 1889, p. 328), and reads as follows: "All other property acquired after marriage by either husband or wife, or both, is community property; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such married woman and her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her as tenant in common, unless a different intention is expressed in the instrument, and the presumption in this section is conclusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration."
Prior to this amendment, property conveyed to the wife during coverture was presumptively community property, yet the wife might show by extrinsic evidence either that it was paid for out of her separate property, or that it was intended as a deed of gift, and in either event it became her separate property. (Higgins v. Higgins , 46 Cal. 259; Rico v. Brandenstein , 98 Cal. 469; 35 Am. St. Rep. 192.)
So, too, it was held that a husband, free from debt, could purchase property with community funds and direct a conveyance to his wife, with intent to make it her separate estate, and the deed would take effect as a gift, and if the deed was one of bargain and sale, reciting a valuable consideration, it was competent to show by parol the real facts in order to rebut the presumption that it was common property. (Woods v. Whitney , 42 Cal. 358.)
Again, where property is acquired partly with separate funds and partly with community funds, it becomes in part community property, in proportion to the separate and community funds invested in it.
In the case at bar the plaintiff purchased the property during coverture, and took a deed in her own name, reciting a valuable consideration.
Such deed so taken was, under section 164 of the Civil Code, as amended in 1889, prima facie evidence that the premises so purchased became and are the separate property of the plaintiff.
This presumption is strengthened by testimony showing that of the $ 15,000 purchase money plaintiff advanced and paid $ 4,000 from her separate estate or funds. To this extent then plaintiff, irrespective of the presumption arising from her deed, under the doctrine of Estate of Bauer , 79 Cal. 309, became the owner of a separate estate in the property.
There is also her own testimony and the declarations of her husband, made at the time of purchase, that his wife was purchasing it for herself and was going to pay for it; that she was buying it with her own money; that she had been without a home a good while, and he was glad she had selected it so that she could have it, etc.
This was sufficient to show that it was the intent of the parties that plaintiff should take and hold the property as her separate property, and to authorize the court below in finding that it was her separate property, and that her husband, W. J. Heney, had no estate or interest therein, unless such conclusion is negatived by the fact that in 1890 the husband, W. J. Heney, joined with her in executing a promissory note for $ 11,000, and a mortgage upon the premises in question and other lots of land, the separate property of plaintiff, to secure the payment of such promissory note. Had W. J. Heney advanced any part of the purchase price of the property from community funds it would have become pro tanto community property, but he did not do so.
The purchase price was $ 15,000. Of this sum plaintiff paid $ 4,000, assumed a mortgage for $ 7,500, and was to pay the residue at the end of one year. Not having funds in hand, she borrowed $ 11,000, paid off the existing mortgage, made the final payment, and gave a new mortgage, in which her husband joined. She sold some separate property, and reduced the mortgage to $ 10,000, which has been assumed by Jordan in his contract to purchase the premises.
Assuming, then, that the property was purchased by the plaintiff as and for her separate property, and that her husband paid no part of the purchase price, we do not find in the mere fact that her husband joined with her in a note and mortgage to secure a part of the purchase price, but paid nothing on account thereof, anything to rebut the deduction that it was and is the separate property of the plaintiff.
In Flournoy v. Flournoy , 86 Cal. 286, 21 Am. St. Rep. 39, real estate had been conveyed to the wife as her separate property. She joined with her husband in a note and mortgage upon the land to raise money to pay off a prior mortgage thereon, and it [41 P. 822] was held that the money thus realized upon such joint mortgage was her separate property.
Applying the doctrine of that case to the present one, and it follows that the money secured by the joint note and mortgage of plaintiff and her husband, and which went to pay for the land, was the separate property of the plaintiff, and inured to her sole benefit.
The case of Schuyler v. Broughton , 70 Cal. 282, which seems scarcely in line with Flournoy v. Flournoy, supra, was doubted, though not overruled, in the latter case.
We think Schuyler v. Broughton, supra, may be differentiated from the present case.
There the land was conveyed to the wife in her own name by a deed which upon its face showed a consideration paid by the wife, and did not show that the land was conveyed to her to hold as her separate property. She paid a portion, viz., $ 200 of the purchase price from her separate property. Thus far the case is parallel with the one at bar, but here the parallel ceases.
In that case, so far as appears, there was no showing by extrinsic evidence that it was the intention of the spouses that the wife should purchase and take the title and enjoyment as her separate estate, and hence the court held that as to the purchase money borrowed by the wife, but not secured by any lien or mortgage upon the property, the money so borrowed, and the estate so far as paid for therewith, became the community property of the spouses.
In the present case, the extrinsic evidence tended to show the intent to purchase the property by plaintiff as her separate estate, which intent was acquiesced in by her husband. That being so, the money borrowed and secured by a mortgage upon her separate property became also her separate property, and when it went to pay the residue of the purchase price of the land the whole estate vested in the plaintiff as her separate property. It is rational to conclude that money borrowed upon the separate real estate of one of the spouses will, in the absence of any showing to the contrary, be treated as the separate property of the party owning such real estate. A like rule is applicable to funds raised upon the security of community property.
The agreement of plaintiff to convey to Jordan was properly excluded as evidence. It provided for a deed from plaintiff to be executed and placed in escrow, to be delivered upon final payment of the purchase price. The only object of the evidence was to serve as a link in a chain showing that title had passed from plaintiff, and therefore that she could not maintain the action. But before the agreement was offered in evidence, it had appeared, as it did again, later, that the final payment had not yet been made, and that the deed still remained in escrow. This being so, the agreement became unimportant as evidence.
The judgment appealed from should be affirmed.
For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.