Carlson v. McCall

• Decision Date: 24 June 1954
• Docket Number: No. 3739,3739
• Citation: 271 P.2d 1002,70 Nev. 437
• Parties: CARLSON v. McCALL.
• Court: Nevada Supreme Court

Page 1002

271 P.2d 1002

70 Nev. 437

CARLSON v. McCALL.

No. 3739.

Supreme Court of Nevada.

June 24, 1954.

George E. Marshall, Las Vegas, Luke J. McNamee, Los Angeles, Cal., for appellant.

Jones, Wiener & Jones, Las Vegas, for respondent.

EATHER, Chief Justice.

This is a suit to quiet title to a certain ranch property in Ash Meadows, Nye County, Nevada. The question involved upon this appeal is whether the Ash Meadows Ranch was the separate property of Freda Carlson or was community property and subject to execution to satisfy a judgment upon a community obligation. The Fifth Judicial District Court of the State of Nevada decreed that the property levied on was community property of O. H. Carlson and Freda Carlson and subject to execution; that by virtue of execution sale the title to said property became vested in T. A. McCall, Trustee. Judgment was rendered against the plaintiff Freda Carlson, who has taken this appeal.

The following are the material facts which the court was entitled to consider:

On the 1st day of June, 1945, J. D. Masten and his wife Julia Masten, filed suit in the Fifth Judicial District Court of the State of Nevada, in and for the County of Nye, being case No. 5413, and at the same time attached the property, subject of this litigation, known as the Ash Meadows Ranch. O. H. Carlson, defendant in that action, is the husband of Freda Carlson, appellant herein. The Carlsons were married in 1925 and ever since have been and now are husband and wife. At the time of the attachment, O. H. Carlson and Freda Carlson were the record owners of this property. The suit filed by the Mastens against Carlson was based upon a judgment obtained by Masten against O. H. Carlson in California in 1933. On August 9, 1948, Masten obtained judgment against O. H. Carlson in Nevada, in action No. 5413, in the District Court of Nye County, in and for the State of Nevada, and the property previously attached was sold on execution sale to the defendant T. A. McCall upon his bid of $20,000.

After the attachment was levied and on July 26, 1945, O. H. Carlson by quitclaim deed conveyed his interest in the attached property to his wife, the appellant, Freda Carlson, who now brings this action to quiet her title. The substance of her cause of action is that on June 1, 1945, the property was all hers and O. H. Carlson had no interest in it, although he appeared as one of the record owners.

An examination of the record reveals that the respondent McCall owned this property originally.

According to McCall, in 1937 he purchased some mining machinery from O. H. Carlson. Carlson gave McCall a bill of sale, signed by Carlson's son, Ivan Carlson. To secure payment of the balance of the purchase price, McCall executed a mortgage on the Ash Meadows Ranch, in favor of Freda Carlson, in the sum of $1,800, payable February 25, 1939. McCall testified that all of his dealings were with O. H. Carlson; that the machinery was, in fact, the property of O. H. Carlson, and that the bill of sale came from Ivan Carlson, and the mortgage was in favor of Freda Carlson at the request of and for the protection of O. H. Carlson, who had been adjudicated a bankrupt in 1934, and was merely attempting to protect himself; that, at the very time all of these transactions took place, the Mastens had an outstanding judgment in the amount of some $39,000 against O. H. Carlson, which judgment had never been satisfied.

O. H. and Freda Carlson, in their testimony, denied that O. H. Carlson ever had any interest in the machinery and asserted that it all belonged to Freda Carlson.

McCall could not meet his payments on the note, and by 1941 the Carlsons were threatening foreclosure of the mortgage. An amicable arrangement was worked out between the parties whereby McCall deeded the ranch to O. H. Carlson and Freda Carlson, and took back from them a lease and option to buy. It was understood by all that if McCall raised sufficient money to pay his indebtedness to the Carlsons by the end of the lease period, he was to get the ranch back. McCall did not raise the required money within the option period, and the property was left standing in the names of O. H. Carlson and Freda Carlson, with McCall having forfeited all his interest therein. McCall subsequently brought an action to establish an equitable mortgage in the property. McCall lost his suit, and the title was quieted in O. H. Carlson and Freda Carlson, in this same action on June 26, 1945. Such was the state of title at the time the Mastens attached the property.

All property acquired after marriage, by either husband or wife, or by both, is presumed to be community property, and the burden is on that party who would claim it as separate property to overthrow this presumption. Before the presumption may be overthrown the evidence must be clear and satisfactory.

We believe that no other safe rule can be laid down that that property or money once a part of the community will be presumed, as against creditors, to remain such until shown by clear, certain, and convincing proof to have been transmitted into separate property. Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74. It is conceded that property acquired during coverture presumably belongs to the community. The burden is on the person claiming it as separate property to overcome this presumption by proof sufficiently clear and...