Chicago Portrait Co. v. Sexton, 5431

• Decision Date: 26 March 1930
• Docket Number: 5431
• Citation: 49 Idaho 128,286 P. 615
• Parties: CHICAGO PORTRAIT COMPANY, a Corporation, Appellant, v. MRS. A. C. SEXTON, Respondent
• Court: Idaho Supreme Court

286 P. 615

49 Idaho 128

CHICAGO PORTRAIT COMPANY, a Corporation, Appellant, v. MRS. A. C. SEXTON, Respondent

No. 5431

Supreme Court of Idaho

March 26, 1930

HUSBAND AND WIFE - WIFE'S SEPARATE PROPERTY - ATTACHMENT - CLAIMS AGAINST HUSBAND.

Fact that husband at times had management and control of property purchased with money belonging to wife with her consent created no presumption that property was either husband's separate property or that it was community property so as to be subject to attachment for claims against husband.

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

Action against sureties on bond in which wife of defendant Sexton intervened, claiming title to attached property. Judgment for intervenor. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

G. W Lamson, for Appellant.

The presumption that property acquired by either husband or wife during coverture is community property can be overcome only by clear and convincing evidence. (Glenn v. California Trona Co., 38 Cal.App. 601, 177 P. 178.)

Property purchased by the husband with money borrowed from his wife is not her separate property. (31 C. J. 37; McDonnell v Jones, 25 Idaho 551, 138 P. 1123.)

In the absence of a pledge or mortgage of separate property property purchased upon credit by either spouse belongs to the community. (31 C. J. 39; Ives v. Connacher, 162 Cal. 174, 121 P. 394.)

D. L. Rhodes, for Intervenor and Respondent.

Possession, management or control by the husband of the wife's separate property, with her consent, creates no presumption that the property is either his separate property or that it is community property. (Title Ins. & Trust Co. v. Ingersoll, 153 Cal. 1, 94 P. 94; Wilkerson v. Aven, 26 Idaho 559, 144 P. 1105.)

BUDGE, J. Givens, C. J., and Lee, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

Appellant brought this action against one Ecker and A. C. Sexton, who were signers of an alleged guaranty or bond furnished to appellant by one Fordham. Fordham was an agent of appellant corporation and sold certain personal property delivered into his possession but failed to account to the corporation for moneys due it. Ecker and Sexton permitted default to go against them. At the time of the filing of the action appellant caused an automobile to be attached as the property of defendant Sexton. Respondent, wife of A. C. Sexton, filed a complaint in intervention, setting up, among other things, that she was the owner of and entitled to the possession of the automobile. To the complaint in intervention an answer was filed by appellant in which the ownership and right to possession by respondent of the automobile was denied, and ownership in A. C. Sexton and respondent as a community was alleged.

The sole question here for determination is whether the evidence is sufficient to support the finding of the trial court to the effect that the automobile, at and prior to its attachment, was the sole and separate property of respondent. No useful purpose would be served by setting out in detail the nature of the various transactions leading up to vesting of title to the automobile in respondent. Suffice it to say the evidence is ample to show that respondent was the owner of the same. There is no proof of any fraudulent dealings between respondent and her husband or any other person to defeat appellant's recovery. There is no evidence of any transaction for the purpose of defrauding the creditors of A. C. Sexton. The transaction between the husband and wife as disclosed by the record was ...