Baldwin v. McFarland

• Decision Date: 15 May 1914
• Citation: 141 P. 76,26 Idaho 85
• Parties: ALICE E. BALDWIN, Respondent, v. W. B. MCFARLAND, Sheriff, et al., Appellants
• Court: Idaho Supreme Court

141 P. 76

26 Idaho 85

ALICE E. BALDWIN, Respondent, v. W. B. MCFARLAND, Sheriff, et al., Appellants

Supreme Court of Idaho

May 15, 1914

COMMUNITY PROPERTY-SEPARATE PROPERTY OF WIFE-SUFFICIENCY OF EVIDENCE.

1. Evidence in this case examined, and held sufficient to support the finding and judgment that the property levied upon was the separate property of the wife and not the community property of the husband and wife.

2. Evidence examined and held sufficient to support the judgment.

APPEAL from the District Court of the Eighth Judicial District for the County of Kootenai. Hon. R. N. Dunn, Judge.

Action to restrain and enjoin the sale of certain real estate on execution issued against the plaintiff's husband. Judgment for the plaintiff. Defendants appeal. Affirmed.

Judgment affirmed. Costs awarded in favor of the respondent.

Ezra R Whitla, for Appellants.

"Real estate conveyed to the wife during coverture is presumed to be community property. . . ." (Stowell v. Tucker, 7 Idaho 312, 62 P. 1033.)

When this presumption has passed it then follows that it is incumbent upon the plaintiff or anyone attempting to show property to be separate property to make this appear by clear and convincing proof.

McNaughton & Berg, for Respondent.

The judgment debtor having put nothing into the property, his creditors can take nothing out of it. (Gladstone Lumber Co. v. Kelly, 64 Ore. 163, 129 P. 763; Heinrich v Heinrich, 2 Cal.App. 479, 84 P. 326; Oldershaw v Matteson & Williamson Mfg. Co., 19 Cal.App. 179, 125 P. 263; Flournoy v. Flournoy, 86 Cal. 286, 21 Am. St. 39, 24 P. 1012; Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was brought by the plaintiff, Alice E. Baldwin, against W. B. McFarland, as sheriff of Kootenai county, and against the other defendants to enjoin and restrain the sale of certain real estate which the sheriff had levied upon under an execution issued in the case of W. H. Ferrell against J. B. Baldwin. J. B. Baldwin is the husband of the respondent, Alice E. Baldwin. The property had been levied upon for the collection of a judgment against the husband. The wife commenced this action to enjoin the sale of the property, alleging that the property levied upon was her separate estate.

The complaint alleges, and the evidence discloses, a detailed history of the acquisition of this property. It would be entirely useless to reiterate the history of these several transactions and of the acquisition of this property in a written opinion. The important and decisive question to be determined in the case is as to whether this was the separate property of the wife, or community property of both husband and wife. The appellant has the same...