Bank of Orofino v. Wellman

• Decision Date: 23 October 1914
• Citation: 26 Idaho 425,143 P. 1169
• Parties: BANK OF OROFINO, a Corporation, Appellant, v. W. A. WELLMAN and P. E. MCROBERTS, Copartners Doing Business Under the Firm Name and Style of WELLMAN-MCROBERTS CO. and ORA WELLMAN, Respondents
• Court: Idaho Supreme Court

143 P. 1169

26 Idaho 425

BANK OF OROFINO, a Corporation, Appellant, v. W. A. WELLMAN and P. E. MCROBERTS, Copartners Doing Business Under the Firm Name and Style of WELLMAN-MCROBERTS CO. and ORA WELLMAN, Respondents

Supreme Court of Idaho

October 23, 1914

MARRIED WOMAN-SEPARATE PROPERTY-FRAUD-PROOF-COMMUNITY PROPERTY-CREDITORS OF HUSBAND-ATTACHMENT-IMPROVEMENTS ON WIFE'S SEPARATE PROPERTY-ESTOPPEL IN PAIS-EVIDENCE-FINDINGS OF FACT.

1. Held, that the finding of facts in this case to the effect that the property in controversy was the separate property of the wife was sustained by the evidence.

2. Held, that to constitute estoppel in pais, there must have been either false representation as to material facts or wrongful, misleading silence. (Bigelow on Estoppel, p. 602.)

3. Held, that a husband when free from debts and liabilities may make a gift to his wife from their community property, and that the same will then become her separate property and will not be liable for debts subsequently contracted by him.

APPEAL from the District Court of the Second Judicial District for Clearwater County, from a judgment and decree in favor of respondent, Ora Wellman. Hon. Edgar C. Steele, Judge.

Action to determine the title to a certain lot situate in the city of Lewiston, Idaho, and claimed to be owned as her separate property by the said Ora Wellman; and not to in any way or manner interfere with the validity of appellant's judgment heretofore entered in said court. Affirmed.

Judgment affirmed, with costs to respondent.

John R Becker, for Appellant.

The separate character of the property must be established by something more than a mere preponderance of the evidence. It is hardly possible for a creditor to prove, or to offer any evidence tending to prove, that the sister of the debtor did not, at one time, make the debtor's wife a present of several hundred dollars in cash.

It is not only necessary for these respondents to satisfactorily show that the wife came into possession of separate funds through one of the recognized sources of separate acquisition, but those identical funds must be traced into the investment which she claims is a part of her separate estate. (Patterson v. Bowes, 78 Wash. 476, 139 P 225; McKay, Community Property, sec. 265; Riebli v Husler, 7 Cal. Unrep. 1, 69 P. 1061; Ramsdell v. Fuller, 28 Cal. 37, 87 Am. Dec. 103; Chapman v. Allen, 15 Tex. 278; Claiborne v. Tanner, 18 Tex. 69; Dominquez v. Lee, 17 La. 295; Webb v. Peet, 7 La. Ann. 92; Smith v. Smith, 12 Cal. 216, 73 Am. Dec. 533; Meyer v. Kinzer, 12 Cal. 247, 73 P. 538; Smith v. Weed, 75 Wash. 452, 134 P. 1070; Ballinger, Community Property, sec. 40.)

"A spouse who has by his or her acts or conduct induced third persons to deal with property as separate will be estopped afterward to deny that it is separate, where to permit him to do so would operate to the prejudice of such third persons. And the same principle is applicable to property represented or treated as community property." (21 Cyc. 1654; Patton v. Gates, 67 Ill. 166; Coon v. Rigdon, 4 Colo. 275; Roberts v. Bodman etc. Lumber Co., 84 Ark. 227, 105 S.W. 258; Hobbs v. Frazier, 61 Fla. 611, 55 So. 848; Million v. Commercial Bank, 159 Mo.App. 601, 141 S.W. 453.)

"In the states where the wife has the control of her separate property, there would seem to be no reason why creditors of the community might not at any time subject to the payment of their claims funds applied to the wife's separate benefit, with her express or implied consent." (McKay, Community Property, sec. 250; Maddox v. Summerlin, 92 Tex. 483, 49 S.W. 1033; Collins v. Bryan, 40 Tex. Civ. App. 88, 88 S.W. 432.)

George W. Tannahill, for Respondents.

The improvements became a permanent part of the wife's property and no creditor then existed to challenge the same. (Ware v. Seasongood, 92 Ala. 152, 9 So. 138; McKay on Community Property, sec. 250.) In the case at bar, the record is silent of any indication of fraud.

"Where the husband erects a building on land of his wife, the law presumes that he intended it for her benefit." (Appeal of Connecticut Humane Society, 61 Conn. 465, 23 A. 826; Metropolitan Nat. Bank v. Rogers, 47 F. 148.)

"The mere fact that a husband, by his labor, has improved the real estate of his wife, will not render it subject to his debts." (Cox v. Bishop, 2 Ky. Law Rep. 310; McFerrin v. Carter, 62 Tenn. (3 Baxt.) 335; Webster v. Hildreth, 33 Vt. 457, 78 Am. Dec. 632.)

"In order to estop a married woman from asserting her claim to real estate, it is essential that she be guilty of positive fraud, or some act of concealment or suppression equivalent to fraud." (Williamson v. Gore (Tex. Civ. App.), 73 S.W. 563; McClain v. Abshire, 72 Mo.App. 390; Williamson v. Jones, 43 W.Va. 562, 64 Am. St. 891, 27 S.E. 411, 38 L. R. A. 694; Kemp v. Folsom, 14 Wash. 16, 43 P. 1100; Harris v. Van De Vanter, 17 Wash. 489, 50 P. 50; Steed v. Petty, 65 Tex. 490; Johnson v. Bryan, 62 Tex. 623.)

TRUITT, J. Sullivan, C. J., concurs.

OPINION

TRUITT, J.

In this case the Bank of Orofino, situated in the town of Orofino in Clearwater county, in this state, recovered a judgment for $ 2,542.13 and for costs in the district court for said county on December 8, 1913, from W. A. Wellman and P. E. McRoberts, Copartners doing business in said town of Orofino under the firm name of the Wellman-McRoberts Co. This company had been engaged in business for some years prior to December 4, 1913, and at that date the company was financially in failing circumstances, and for the purpose of making a distribution of their property among all their creditors said W. A. Wellman and P. E. McRoberts at said date made an assignment of their stock of merchandise, together with all accounts receivable, to one J. B. Campbell, as assignee, and also deeded to said Campbell certain real property in said town of Orofino. At the commencement of the action of said bank in which said judgment was obtained against Wellman and McRoberts, an attachment was issued and levied upon said merchandise and said real property in Orofino, and also upon certain real property in Nez Perce county, Idaho, standing on the records of said county in the name of said W. A. Wellman, and upon lot 1 of block 13 of Riverview addition to the city of Lewiston, in said Nez Perce county, standing on record in said county in the name of his wife, Ora Wellman, which is the subject of the controversy in this case. The testimony is not disputed to the effect that this property was purchased by said Ora Wellman with her own money in March, 1906, and that the improvements thereon were put upon the property during the spring of the same year. On December 11, 1913, a stipulation in writing was entered into by and between all the parties interested by which the said bank released its attachment on all the said property and agreed to share the estate pro rata with all the other creditors of said Wellman and McRoberts, and also to the property in Lewiston claimed by Ora Wellman, the said stipulation being as follows as to the property claimed by said Ora Wellman:

"It is further agreed that the title to the said property claimed by Ora Wellman may be tried out in the above-entitled cause upon complaint in intervention, and answer thereto, the parties hereto waiving any objections on the ground that the complaint in intervention was not filed prior to the entry of judgment or default, it being considered that the sole purpose of the complaint in intervention is to try out the title to the lot situate in the city of Lewiston, and claimed to be owned as separate property by the said Ora Wellman, and not to interfere in any way or manner with the validity of the plaintiff's judgment heretofore entered."

According to the terms of this stipulation, on December 18, 1913, said Ora Wellman filed her complaint in intervention in said district court, in which she recited the facts of the attachment of said lot 1 of block 13, Riverview addition to Lewiston, Idaho, and claimed the same as her sole and separate property; she alleged that the attachment was a cloud upon her title, and asked that it be removed, and that said bank be enjoined from selling the property. To this complaint the bank filed its answer, denying the material allegations of the complaint, and setting up as a separate and affirmative defense certain facts tending to defeat plaintiff's claim of title to said property as alleged in her complaint. On the issues thus made by the pleadings the cause was tried by the court without a jury on March 13, 1914, and the court's findings of fact relating to the property in controversy are as follows:

"III. That the intervenor, Ora Wellman, is the owner of lot 1 of block 13 of Riverview Addition to the city of Lewiston, Idaho, which is the separate property of the intervenor, Ora Wellman."

And as to the material allegations of intervenor's complaint, the court found as follows:

"V. That all the material allegations of intervenor's complaint in intervention are found to be supported by the evidence and true, and all the material denials and affirmative matter alleged in plaintiff's amended answer thereto are found to be unsupported by the evidence and untrue."

The principal question presented in this case is as to whether the respondent has the title to the property in controversy and whether she secured it so as to make it her sole and separate property within the meaning of sec. 2676, Rev. Codes, and this was the main question presented to this court in Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775, and in the case of Baldwin v. McFarland, decided May 15, 1914, and reported ante, p. 85, 141 P. 76, the same question was again presented to it and briefly disposed of in this...