Boggs v. Seawell

• Decision Date: 23 February 1922
• Parties: FLORA E. BOGGS, Respondent, v. LESTER C. SEAWELL, Appellant
• Court: Idaho Supreme Court

205 P. 262

35 Idaho 132

FLORA E. BOGGS, Respondent, v. LESTER C. SEAWELL, Appellant

Supreme Court of Idaho

February 23, 1922

TRESPASS-ENTRY OF HOMESTEAD-SUBSEQUENT MARRIAGE-SEPARATE OR COMMUNITY PROPERTY-SUFFICIENCY OF COMPLAINT-LIBERAL CONSTRUCTION AFTER JUDGMENT.

1. When an entry of public lands is made by a single person under the public land laws, the right acquired is separate property and subsequent marriage does not have the effect of making it community property.

2. A pleading should be more liberally construed after judgment especially when the point is first raised in the appellate court, than on demurrer or motion before trial.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. Ed. L. Bryan, Judge.

Action for trespass. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Scatterday & Stone, for Appellant.

A married woman cannot bring an action upon a cause of action belonging to the community; and when this is done the fact that the cause of action is community property is a defense. (Holton v. Sand Point Lumber Co., 7 Idaho 573, 64 P 889.)

All property acquired during coverture is presumed to be community property. This presumption may be overcome, but the burden of proof rests upon the party asserting the property to be separate property. (Sec. 4660, C. S.; Jacobson v. Bunker Hill etc. Co., 3 Idaho 126, 28 P. 396; Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104; 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; Gooding Milling etc. Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66; Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468.)

When a woman, who has settled upon a government homestead, marries, and she has at the time of marriage complied with the laws to such an extent as to be entitled to make final proof and receive patent for such homestead, the subsequent acquisition of title inures to the benefit of the community and the land will be deemed community property. (Humbird Lumber Co. v. Doran, supra.)

L. M. Lyon and W. C. Bicknell, for Respondent, file no brief.

MCCARTHY, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action for trespass. In her amended complaint respondent alleges among other things that she was, at all times mentioned, the holder and in possession of certain described land; that appellant during the spring, fall and winter of 1917 and the spring, fall and winter of 1918, grazed his sheep upon said land to respondent's damage in the sum of $ 3,000. She also alleges that G. S. See was her agent at all times mentioned in the complaint, her husband being in the service of the United States in France, thus injecting into the pleading, in an indirect way, the fact that she was married at the time the action was brought. After a trial to the court without a jury, the court found that at all times in question respondent was and now is the holder and in possession of the property described; that at different times after May 22, 1918, appellant and his agents unlawfully permitted certain of his sheep to go upon respondent's land, and that said sheep ate up and tramped out certain grasses growing thereon to her damage in the sum of $ 100. Judgment was entered accordingly, from which appellant takes this appeal.

The specifications of error are, first, that plaintiff's amended complaint does not state facts sufficient to state a cause of action; second, that the evidence is insufficient to support the decision of the court for the following reasons: (a) It does not appear that the land upon which the sheep trespassed was the separate property of the respondent, but it is affirmatively shown that the said lands were at the time of the suit the community property of the respondent and her husband; (b) it appears that the only damage suffered was the necessity of buying hay for livestock purchased with money belonging to the husband of respondent, and that said husband had an interest in such stock; (c) the evidence shows respondent and her father were in partnership and her action was brought for her share of a partnership claim.

We will first consider point (a) of the second specification of error. The evidence shows that respondent, while a single woman, on April 23, 1915, entered the land in question as a homestead. On December 21, 1917, she married and her husband was living at the time of the suit. On April 29, 1918, she made final proof and obtained a receiver's certificate. Appellant contends that, on these facts, the land was community property at the time the action was brought. If it was, respondent had no right to bring the action and it must fail. (C. S., sec. 4666; Holton v. Sand Point Lumber Co., 7 Idaho 573, 64 P. 889.) This court has held: "Where a government homestead entry has been made and the equitable title thereto has been earned prior to the marriage of the entryman, the property acquired under such entry will become the separate property of the entryman under secs. 2678 and 2679 of the Rev. Codes, although such entryman marries prior to making final proof or acquiring the legal title to the land." (Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66.)

Appellant's counsel sees in this decision an intimation that, if the marriage occurred before the entryman had earned title, the property would have been community property. The decision does not so hold and we do not think it so intimates. It does not appear from the statement of facts that the period of residence had been completed, and the entryman was entitled to make final proof, before the marriage. When the court spoke of earning equitable title, it probably meant the equitable title which is gained by entry and settlement. But, even if the court meant that the entryman had completed residence and was entitled to make final proof at the time of the marriage, the case is not decisive of the present question. The decisions of the courts in other community property states are uniform to the effect that where one enters and settles upon a homestead and marries before he is entitled to make final proof, the homestead...