Horton v. Horton

• Decision Date: 19 June 1929
• Docket Number: Civil 2816
• Parties: IRA F. HORTON, Appellant, v. ALMA O. HORTON, Appellee
• Court: Arizona Supreme Court

278 P. 370

35 Ariz. 378

IRA F. HORTON, Appellant, v. ALMA O. HORTON, Appellee

Civil No. 2816

Supreme Court of Arizona

June 19, 1929

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Affirmed.

Mr. W E. Patterson and Messrs. Norris, Norris & Flynn, for Appellant.

Mr. J E. Russell and Mr. R. B. Westervelt, for Appellee.

OPINION

LOCKWOOD, C. J.

Alma O Horton, hereinafter called plaintiff, brought suit against Ira F. Horton, her husband, hereinafter called defendant, to quiet title to certain lots in Yavapai county, claiming the same to be her separate and individual property. Defendant answered, alleging that the lots in question were community property. The matter was tried to the court, sitting without a jury, and judgment rendered in favor of plaintiff, from which judgment, defendant has appealed.

The only finding of fact made by the trial court was, "That the plaintiff is the owner of and entitled to the possession of the premises described in the amended complaint and hereinafter described; that her title is in fee simple and that the said premises has at all times since she acquired title thereto been her separate and individual property, in which her husband, Ira F. Horton, the defendant herein, never at any time had any community interest or any other interest of any kind or character therein, . . . " and judgment was rendered accordingly. The so-called finding of fact was in reality more in the nature of a conclusion of law, but under our oft-repeated rule, it is presumed the court found every fact necessary to support the judgment, and such presumptive findings must be sustained if the evidence on any reasonable construction justifies them.

The law governing the case is well established. It may be stated in the following manner: All property acquired during coverture, no matter in whose name the title is taken, is prima facie presumed to be community. Malich v. Malich, 23 Ariz. 423, 204 P. 1020; Benson v. Hunter, 23 Ariz. 132, 202 P. 233. The character of the property as to being separate or community becomes fixed at the time it is acquired. Pendleton v. Brown, 25 Ariz. 604, 221 P. 213. When the purchase price of property acquired during coverture is paid for out of the separate funds of one spouse, the property becomes the separate property and estate of such spouse. Charauleau v. Woffenden, 1 Ariz. 243, 25 P. 652; 31 C.J. 37, and note. But when purchased in part with community funds and in part with separate funds, it is community property to the extent and in the proportion that the consideration is furnished by the community. In re Finn's Estate, 106 Wash. 137, 179 P. 103; Graves v. Columbia Underwriters, 93 Wash. 196, 160 P. 436. And when the part of the purchase price is separate funds and the balance is borrowed on a mortgage on the property and a note signed by both spouses at the instance of the mortgagee, as between the spouses, unless the mortgage was afterwards paid from community funds, the property is separate. In re Finn's Estate, supra; Graves v. Columbia Underwriters, supra.

Taking the evidence in the strongest manner in behalf of plaintiff as we must, it appears that in 1921 the property in question was purchased for the price of $1,200, $250 in cash being paid at the time. This $250 was...