Jacobson v. Hill

• Decision Date: 02 December 1891
• Citation: 3 Idaho 126,28 P. 396
• Parties: JACOBSON v. BUNKER HILL AND SULLIVAN MINING AND CONCENTRATING COMPANY
• Court: Idaho Supreme Court

28 P. 396

3 Idaho 126

JACOBSON v. BUNKER HILL AND SULLIVAN MINING AND CONCENTRATING COMPANY

Supreme Court of Idaho

December 2, 1891

EJECTMENT-COMMUNITY PROPERTY-SUFFICIENCY OF COMPLAINT-SPECIAL DEMURRER-ABANDONMENT.

EJECTMENT AGAINST DEFENDANT TO RECOVER MINING PROPERTY.-J. brought ejectment against defendant for the recovery of certain mining property, claiming it to be community property of her deceased mother and one K., from whom defendant deraigned title. Complaint alleges the coverture of K. and plaintiff's mother, and that the property described in the complaint was community property. Defendant objects for the first time in the appellate court that the complaint does not state facts sufficient to constitute a cause of action. Held, that the allegation in the complaint was sufficient after judgment; that the objection should have been raised in the court below by special demurrer for uncertainty; not having done so it is waived.

MINING PROPERTY COMMUNITY PROPERTY IN IDAHO.-Mining property acquired in this state under the laws of the United States during coverture is community property.

SAME.-Under the laws of Idaho Territory as they existed in July, 1886 all property acquired by the husband in said territory during coverture, except such as was acquired by gift bequest, devise or descent, was community property; and this although the wife may never have been a resident of the territory.

ABANDONMENT EVIDENCE NOT SUFFICIENT TO ESTABLISH.-The evidence in this case examined, and held not sufficient to establish abandonment.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed.

Woods & Heyburn, for Appellant.

As the complaint alleged that it was community property, that it was acquired during coverture, and that there were no debts existing against it, it was not necessary to plead the facts in detail. (Estee's Pleading and Practice, secs. 2222, 2237, 2238, 2241; Bliss on Code Pleading, sec. 222; Gimmy v. Doane, 22 Cal. 635; Payne v. Treadwell, 16 Cal. 243; Howe v. Howe, 4 Nev. 469; Stutsman Co. v. Mansfield, 5 Dak. 78, 37 N.W. 304; Souter v. Maguire, 78 Cal. 543, 21 P. 183; Broad v. Broad, 40 Cal. 493; Slaterly v. Hall, 43 Cal. 191.) All property acquired after marriage by either husband or wife is community property, presumably. (Idaho Rev. Stats., p. 635; Act Jan. 6, 1875, sec. 2; Broad v. Broad, 40 Cal. 493; Broad v. Murray, 44 Cal. 228; Murphy v. Jurey, 39 La. Ann. 785, 2 So. 575; Webre v. Lorio, 42 La. Ann. 178, 7 So. 460; McCall v. Irion, 41 La. Ann. 1126, 6 So. 845; Broad v. Murray, 44 Cal. 228.) The domicile of the husband is the domicile of the wife. (2 Bishop's Marriage and Divorce, 127, 129; McKenna's Succession, 23 La. Ann. 369; Moore v. Thibodeaux, 4 La. Ann. 74; Beard v. Knox, 5 Cal. 256, 63 Am. Dec. 125; Kashaw v. Kashaw, 3 Cal. 312.) The husband having lived in Idaho, been a citizen thereof, and acquired property therein, durin coverture, it is immaterial where the wife lived during that time. (Story's Conflict of Laws, sec. 474; De Laurancel v. De Boom, 67 Cal. 363, 7 P. 758.) That a husband failed for eight years to support his wife or to live with her was sufficient proof of intent to abandon to have sent the case to the jury. (Morrison v. Morrison, 20 Cal. 431; Benkert v. Benkert, 32 Cal. 468; Cline v. Cline (Or.), 16 P. 282; Osborne v. Osborne, 44 N. J. Eq. 257, 9 A. 698, 10 A. 107, 14 A. 217.)

McBride & Allen, F. Ganahl, A. Hagan, and W. H. Clagett, for Respondent.

Every fact which is necessary to be proved to entitle plaintiff to recover must be alleged in his complaint, or no judgment can be sustained. (Green v. Palmer, 15 Cal. 413, 76 Am. Dec. 492.) Averments of mere evidence or legal conclusions call for no denial. (Racouillat v. Rene, 32 Cal. 450.) Unless the facts essential to the support of the case be alleged in the pleadings, evidence upon such omitted facts cannot be heard or considered. (Hicks v. Murray, 43 Cal. 515.) The property in question is held by possessory title derived under the act of Congress of 1872, and consists of mining claims on the public mineral lands of the United States. These rights are gifts or donations derived from the United States, and are not included in the category of property which, being acquired during marriage, becomes community property. (Scott v. Ward, 13 Cal. 458; Noe v. Card, 14 Cal. 596; Fuller v. Ferguson, 26 Cal. 547; Wilson v. Castro, 31 Cal. 433; Hood v. Hamilton, 33 Cal. 702; Lake v. Lake, 52 Cal. 428; Broder v. Water Co., 101 U.S. 276; Forbes v. Gracey, 94 U.S. 763.) Desertion consists of a cessation of cohabitation, coupled with the intent to desert in the mind of the offending party. ( Morrison v. Morrison, 20 Cal. 431.) Mere lapse of time does not constitute abandonment. (Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181; Partridge v. McKinney, 10 Cal. 181.)

HUSTON J. Sullivan, C. J., and Morgan, J., concurring.

OPINION

HUSTON, J.

The facts as stated in the complaint, and shown by the record are, in substance, as follows: On the seventeenth day of February, 1874, one Noah S. Kellogg was duly and legally married to one Mary A. Byrd, and the said parties continued in the relation of husband and wife until the death of the said Mary A., which occurred on the eighth day of July, 1886. That during said time the said Noah S. Kellogg acquired and became seised and possessed of the mining property and lode claims described in the complaint, and the same became and were the community property of the said Noah S. Kellogg, and Mary A., his said wife. That on or about the first day of November, 1878, the said Noah S. Kellogg abandoned his wife, the said Mary A. Kellogg, and lived separate and apart from her all the time, and continually, until her death, at the time aforesaid, and was living separate and apart from her at the time of her death. That the said Mary A. Kellogg died intestate, leaving as her sole heirs at law the said Clarissa E. Jacobson, the plaintiff in this action, and one Josephine Ward, who were the daughters and the only children and the sole heirs at law of the said Mary A. Kellogg. That the said Josephine Ward refuses to join plaintiff, and become a party plaintiff in this action, and is not joined as one of the plaintiffs herein, for the reason of her said refusal. That no administration was ever had upon the estate of said Mary A. Kellogg, and that there were no debts or claims against the said Mary A. at her death, and that there are now no debts or claims existing against her said estate. The complaint alleges ownership, seizure, and possession by the said Noah S. Kellogg and the said Mary A., his wife, of the property described, at the time of the death of the said Mary A. The complaint alleges ouster of plaintiff by defendant; claims damages in the sum of $ 10,000; also avers the rents, issues, and profits of the said land, mining claims, and premises from the second day of August, 1887, and while the plaintiff has been excluded therefrom, is $ 100,000. And for another cause of action, and for equitable relief, the complaint states the corporate character of the defendant; ownership in fee of the plaintiff and said Josephine Ward to the various interests claimed in the property described in the complaint; the possession of the defendant; the withholding thereof from the plaintiff; waste by the defendant; the values of the entire properties at $ 3,000,000, and the net value of the ore being extracted therefrom at $ 3,000 per day; and the intention of the defendant to make large and extensive expenditures in improvements upon said property, and the exclusion of plaintiff from any knowledge or direction in regard thereto or participation therein. Prays judgment that the plaintiff be let into possession of the described premises and every part and parcel thereof; for the sum of $ 10,000 damages for the wrongful withholding of said premises; and for the further sum of $ 100,000 for the rents, issues, and profits of said premises, and the use and working thereof by the defendant; and for injunction. The defendant Josephine Ward files a general and special demurrer to the complaint. The defendant corporation, by its amended answer, denies all the material allegations of the complaint, except the marriage of said Noah S. Kellogg and Mary A. Byrd; the death of said Mary A.; and that the plaintiff and said Josephine Ward were her children and heirs at law. Admits the ownership at one time by said Noah S. Kellogg of certain interests in the properties described in the complaint, but avers that, for the purpose of liquidating certain indebtedness incurred by him in defending and protecting his title to said properties, said Noah S. Kellogg conveyed his interests in said properties to certain parties, the grantors of this defendant; that all such purchases and transfers, as well of this defendant as its grantors, were made for an adequate and valuable consideration, in good faith, without any knowledge or information that plaintiff claimed any interest in any portion of said mining claims, or that there was or could be any doubt of the right of said Noah S. Kellogg to sell and convey the same. Answer further avers that on the 23d of December, 1887, and while defendant was in the actual and peaceable possession of said properties aforesaid, it instituted proceedings to acquire patent from the United States to the said properties; that all the requirements of the laws of the United States for the procuration of such patent were complied with by the defendant; and that at no time during the period prescribed by law was any adverse claim filed against the said application of defendant by or on the part of the plaintiff. The issues were tried before the court with a jury. After the proofs on the...