Bannock National Bank v. Automobile Accessories Co.
| Decision Date | 03 October 1923 |
| Parties | BANNOCK NATIONAL BANK, a Corporation, Respondent, v. AUTOMOBILE ACCESSORIES COMPANY, a Corporation, W. W. WHITE, ANCY SULLIVAN and D. D. WHITE, Defendants; ELEANOR M. SULLIVAN, Intervenor and Appellant |
| Court | Idaho Supreme Court |
HUSBAND AND WIFE-SEPARATE PROPERTY-PRESUMPTION-BURDEN OF PROOF.
1. The presumption is that all property acquired by either spouse during the marriage is community property and the burden rests upon the one who asserts it to be separate property to establish such fact by a preponderance of the evidence.
2. The presumption of community property, under the facts of this case, held to be sufficiently overcome, where a husband, out of his separate property, being free from debt, purchased a house and lot, the deed being made in the name of the wife and accepted by her in payment of a debt due and owing from her husband, the debt being incurred prior to their marriage.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Action to recover money held under attachment. Judgment for plaintiff. Reversed.
Judgment reversed, with instructions. Costs awarded to appellant.
Geo. C Huebener, for Appellants.
The burden is upon the person who asserts the character or status of property to show it by a preponderance of the evidence. (Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P 66; Clifford v. Lake, 33 Idaho 77, 190 P. 714.)
We have no law in Idaho which prohibits a woman from loaning to the man whom she later marries. (Bank of Orofino v Wellman, 26 Idaho 425, 143 P. 1169.)
Where with the knowledge and acquiescence of the husband a conveyance is made to the wife, in pursuance of a common understanding and intent that the property shall vest in her, as between her and her husband and all parties with notice, the property will be her separate property. (21 Cyc. 1640; Wright v. Wright, 5 Cal. Unrep. 119, 41 P. 695; Ullman v. Jasper, 70 Tex. 446, 7 S.W. 763; Baker v. Baker, 55 Tex. 577; Peters v. Clements, 46 Tex. 114; Hatchett v. Conner, 30 Tex. 104.)
It was purely a repayment of money loaned to him with interest, and unless there is evidence, or even a presumption, tending to show that fraud was being practiced on creditors of the husband existing at the time of such purchase, the presumption that it is community property is rebutted and the presumption that it is her separate property must prevail. (Bank of Orofino v. Wellman, supra; Moody v. Beggs, 33 Idaho 535, 196 P. 306.)
The presumption that it is community property may be rebutted by the party who asserts that status by a preponderance of evidence. (Jacobson v. Bunker Hill etc. Co., 3 Idaho 126, 28 P. 396; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775; Douglas v. Douglas, 22 Idaho 336, 125 P. 796.)
White & Bentley, for Respondent.
Property acquired by purchase during coverture is ordinarily presumed to vest in the community regardless of whether the conveyance is made to the husband or to the wife, or to both. (5 R. C. L. 836; 21 Cyc. 1640, 1641.)
The burden of proof rests upon the party who asserts it is separate property to show such fact by a preponderance of evidence. (Clifford v. Lake, 33 Idaho 77, 190 P. 714; Chaney v. Gauld & Co., 28 Idaho 76, 152 P. 468.)
The law requires clear and satisfactory proof of indebtedness between husband and wife. The secret agreement between husband and wife under which she was to have the property cannot prevail as against creditors. (Harrison v. Tourtellott, 148 Ill.App. 576.)
The original action was one between the Bannock National Bank and the Automobile Accessories Company, W. W. White, Ancy Sullivan, and D. D. White. The intervention was based upon the claim of Eleanor M. Sullivan that a sum of money attached in the original action as the property of Ancy Sullivan, her husband, was her separate property. The cause was tried to the court sitting without a jury and judgment was awarded against appellant, holding that the money in controversy was community property and therefore subject to the judgment entered against the husband of appellant. From this judgment this appeal is taken.
The record discloses the following facts: Ancy Sullivan owned a homestead entry prior to his marriage to Eleanor M. Sullivan. Thereafter he sold the homestead, receiving in part payment therefor certain notes aggregating approximately $ 2,500 which were secured by a mortgage. Prior to the marriage appellant loaned to her husband certain sums of money from her separate property. On June 2, 1915, the loans with the interest aggregated approximately $ 2,600. At this time appellant and her husband were considering purchasing a home in Pocatello and talked to one D. W. Church in regard thereto. Mr. Church, an officer of respondent bank, owned a house and lot which he desired to sell, which appellant and her husband inspected, found the same satisfactory and agreed to buy at a price of $ 2,500. At the time this deal was consummated Mr. Church had knowledge of the money owing by Ancy Sullivan to his wife, and agreed to accept the notes and mortgage owned by Ancy Sullivan, which he received in payment for his homestead, in payment for the house and lot. It was also understood that the deed to the house and lot should be made out to Eleanor M. Sullivan as her sole and separate property and that Ancy Sullivan's debt to her should be paid in this manner. The deal was consummated on those terms on June 2, 1915, and the deed was made to appellant. The notes which form the basis of the original action were not made until May 9, 1917, almost two years after the execution of the deed. Some time later a contract of sale of the house and lot was entered into between appellant and one Kooken, through the agency of C. W. Gray, a real estate agent, whereby it was understood that payments made by Kooken on the purchase price were to be made to appellant through C. W. Gray. At the time of the commencement of the original action certain payments made under the contract of sale were attached in the hands of C. W. Gray, which appellant contends were her separate property and not subject to...
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