Main v. Main

• Decision Date: 28 March 1900
• Docket Number: Civil 719
• Citation: 60 P. 888,7 Ariz. 149
• Parties: FRANK M. MAIN, Plaintiff and Appellant, v. MRS. FRANCIS MAIN et al., Defendants and Appellees
• Court: Arizona Supreme Court

60 P. 888

7 Ariz. 149

FRANK M. MAIN, Plaintiff and Appellant, v. MRS. FRANCIS MAIN et al., Defendants and Appellees

Civil No. 719

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Santa Cruz. George R Davis, Judge. Affirmed.

The facts are stated in the opinion.

Barnes & Martin, and C. W. Wright, for Appellant.

If at the time the husband delivered the deed to his wife it was the intention to make her a present of his interest in the property, then it thereby became her sole property. But, on the contrary, if it was his intention when he made the conveyance to save her the expense and trouble of administering on his estate, he then contemplating a hazardous journey into a foreign country where his life was believed by him to be imperiled, and his intent not then being to have the property lost to the community, then the conveyance did not make the property the separate property of the wife. And so, too, if he was threatened with a blackmailing suit, and to protect his property from this suit and its possible evil consequences, he made the conveyance not intending at the time to change the character of the property from community into separate property, then the property was not lost to the community.

In a word, it is the intention of the grantor at the time the deed is made that will control its effect. Peck v Vandenberg, 30 Cal. 21; Higgins v. Higgins, 46 Cal. 264; Wedel v. Herman, 59 Cal. 516; Taylor v. Opperman, 79 Cal. 468, 21 P. 869; Brison v Brison, 90 Cal. 323, 27 P. 186; Higgins v. Johnson, 20 Tex. 393, 70 Am. Dec. 394; Story v. Marshall, 24 Tex. 306, 76 Am. Dec. 106; Wright v. Wright, (Cal.) 41 P. 695.

S. M. Franklin, for Appellees.

"When the husband conveys property to his wife, whether it be his separate property or community property, the conveyance operates to vest the title in the wife as her separate estate." Wright v. Wright, (Cal.) 41 P. 695; Burkett v. Burkett, 78 Cal. 310, 12 Am. St. Rep. 58, 20 P. 715; Taylor v. Opperman, 79 Cal. 468, 21 P. 869; Oakes v. Oakes, 94 Cal. 66, 29 P. 330.

The prima facie presumption arising from a deed of a husband to a wife conveying to her community property is that it was intended to change its character from community to separate property of the wife. Story v. Marshall, 24 Tex. 306, 76 Am. Dec. 106; Platt on Property Rights of Married Women, sec. 34; Taylor v. Opperman, 79 Cal. 471, 21 P. 869.

"Where property purchased with community funds was conveyed to the wife by direction of the husband, and with the intent that it should become her separate estate, the conveyance operates as a gift from him to her. Wright v. Wright, (Cal.) 41 P. 695; Peck v. Brummagim, 31 Cal. 358; Woods v. Whitney, 42 Cal. 358; Higgins v. Higgins, 46 Cal. 259; Read v. Rahm, 65 Cal. 343, 4 P. 111. If a wife obtains a deed from her husband conveying to her all his or the community property, such deed being executed in consideration of a parol promise to reconvey, a violation on her part of the parol promise is constructive fraud, and she will be held to her agreement; but the evidence of such agreement must be clear, satisfactory, and conclusive. Brison v. Brison, 90 Cal. 323, 27 P. 186; Hunter v. Hunter, (Tex. Civ. App.) 45 S.W. 820.

OPINION

STREET, C.J.

-- On May 31, 1899, the appellant, Frank M. Main, brought action in the district court of the first judicial district, county of Santa Cruz, against the appellees, to have certain property described in his complaint decreed to be community property, and to have a certain deed executed by appellee Francis Main to appellee Mary Marsh annulled. At the time of the commencement of the action appellant, Frank M. Main, and appellee Francis Main were husband and wife, and had been ever since the year 1867. Appellee Mary Marsh was the daughter, issue of said marriage, and George B. Marsh was her husband. The property described in the complaint was lot 1, block 10, lots 10 and 11, block 6, lots 1, 2, and 3, block 7, and an undivided one-half interest in lot 11, block 2; all in the town of Nogales, county of Santa Cruz. The title to said property stood in the name of the plaintiff, Frank M. Main, except lot 10, block 6, and lot 2, block 7, which last-named lots were in the name of the wife, and had never been in the name of the husband, conveyances having been made direct to her from former owners. On the twentieth day of February, 1894, the husband, by deed of conveyance reciting a consideration of five dollars in money "and for love and affection that he bears unto the said party of the second part," conveyed unto his wife, Francis Main, an undivided one-half interest in lot 11, block 2, and lot numbered 1 in block 10, lot 11 in block 6, and lots 3 and 4 in block 7. On the 6th of March, 1899, the wife, Francis Main, "in consideration of the sum of five dollars and of the love and affection that she bears unto the said party of the second part," conveyed the said undivided one-half interest in lot 11, block 2, to the daughter, Mary Marsh. The plaintiff alleged that at the time of conveying said lots to his wife he was threatened with blackmailing suits, and that he was about to start on a tour through Mexico, and that by reason of said premises he was advised to convey the community property to his wife, for the purpose and with the intent of preventing the bringing of said blackmailing suits, and with the further purpose and intent that, in the event of the death of plaintiff, the title to the property might be in the wife free from complications, expense, and annoyance; that at the time of said conveyance it was well understood and agreed between him and his wife that in the event of his return his wife would, on request, reconvey the property to plaintiff; and that said property, and all of it, should continue to be community property, notwithstanding the conveyance; and that the delivery of the deed was made with that understanding and agreement. The wife made answer that the property was not, and had not been since the date of the conveyance and the delivery of the deed, the community property, but that it was her separate property; and denies that there was such an agreement for reconveyance; and alleged that all of said property was her sole and separate property, and that the said deed of conveyance was a gift from her husband. The cause was tried to the court without a jury, and the court found all the issues against the plaintiff and in favor of the defendants; and, as a conclusion of law, that the plaintiff was not entitled to receive and recover anything in the action; that all the property was the sole and separate property of the defendant Francis Main, except the undivided one-half interest in lot 11, block 2, and that the same was the sole and separate property of the defendant Mary Marsh. Appellant makes the following assignment of errors: "(1) The court erred in overruling the motion for a new trial. (2) The court erred in finding the issues for the defendants. (3) The court erred in this case in making a general finding of all the issues for the defendants, and in not finding especially the facts necessary to a judgment. (4) The court erred in finding that the evidence sustains the judgment. (5) The findings do not sustain the judgment. (6) Because the court should have found the issues for plaintiff, and rendered judgment accordingly, and for not doing so the court erred. (7) The court erred in holding the property involved in the suit to be the separate property of the wife, whereas the evidence shows that it was conveyed by the husband to the wife, with no intent of making it separate property, or of losing his interest therein."

As to the first assignment of error, -- to wit, that the court erred in overruling the motion for a new trial, -- the abstract of the record does not show that any motion for a new trial was ever made, as it should do if appellant expects this court to look into that question. Turning to the files of the district court, which are lodged with the clerk of this court, we find a motion for a new trial was made upon general allegations of error. As we said in the case of Miller v. Douglas (decided at this term), ante, p. 41, 60 P 722: "Our rules of court (rule 6, 4 Ariz. xi, 35 Pac. vii) provide that 'all assignment of errors must distinctly specify each ground of error relied upon, and the particular ruling complained of.' Subdivision 2 of that rule provides: 'If the assignment of error be that the court overruled a motion for a new trial, and the motion is based upon more than one ground, the same will not be considered as distinct and specific by this court, unless each ground is separately and distinctly stated in the assignment of errors.' Counsel relies on the statute in relation to motions for new trial, approved March 22, 1893 (act No. 21, Laws 1893), and says that, if the motion for a new trial is not required to be specific, an assignment of error which specifies the general grounds of the motion in conformity with the statute is sufficient. Even without the aid of our rules, we feel appellant's...