McKeehan v. Vollmer-Clearwater Co., Ltd.

Decision Date26 June 1917
Citation30 Idaho 505,166 P. 256
PartiesJULIE A. MCKEEHAN, Respondent, v. VOLLMER-CLEARWATER COMPANY, LIMITED, a Corporation, Appellant
CourtIdaho Supreme Court

HUSBAND AND WIFE-WIFE'S SEPARATE PROPERTY-ESTOPPEL OF WIFE-EVIDENCE-APPEAL-HARMLESS ERROR.

1. Where in a trial to the court without a jury, the court denies a motion to strike testimony as to the receipt of money by draft in exchange for the return of a deed, based on the ground that the deed and draft are the best evidence, and testimony is subsequently introduced showing that the deed was burned and never recorded, that the person who sent the draft for the drawer thereof was dead, that neither the drawer nor drawee knew where the draft was procured and that the records of the bank at which the draft was cashed were lost or destroyed, the error in refusing to strike the testimony was not prejudicial.

2. In a suit by a wife to quiet title to real estate, sold on execution against her husband, evidence held sufficient to support the finding that the property was purchased with the separate funds of the wife and not with the proceeds of a sale of community property.

3. Where there is a conflict of evidence as to whether property claimed as separate property of the wife was purchased out of the proceeds of the sale of community property, and the trial court finds that it was not so purchased, the finding will not be disturbed.

4. A married woman purchased real property with her own funds allowing her husband to act as her agent in the transaction and the title was taken in the name of her husband contrary to her instructions. The wife, being unable to read, believed her husband's statement that the title was in her name and nothing happened to put her on inquiry or arouse her suspicions to the contrary.

5. Held, that she was not estopped to claim title as against an execution creditor of her husband.

[As to when resulting trust arises in favor of either husband or wife, 127 Am.St. 252]

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action to quiet title. Decree for plaintiff. Affirmed.

Decree affirmed. Costs awarded to respondent.

A. H Oversmith, for Appellant.

"In transactions of this kind between husband and wife, where the wife is attempting to protect property which she claims is her separate property from the debts of her husband, which has been standing in his name, the evidence ought to be clear and convincing, and the best evidence that can be produced ought to be presented on the trial." (Chaney v Gauld Co., 28 Idaho 76, 152 P. 468; 17 Cyc. 465; Mendenhall v. Elwert, 36 Ore. 375, 52 P. 22, 59 P. 805; Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538.)

A married woman may be estopped from claiming her separate property if she has allowed the title to remain in the name of her husband by creditor who relies upon the record title and extends credit by reason of the apparent ownership of the property. (Chaney v. Gauld, supra; First Nat. Bank v. Kissare, 22 Okla. 545, 132 Am. St. 644, 98 P. 433; McNeil v. Tenth Nat. Bank, 46 N.Y. 325, 7 Am. Rep. 341; Kalinowski v. McNeny, 68 Wash. 681, 123 P. 1074.) Neither is the fact that the plaintiff could not read or write sufficient to raise the bar of estoppel. (Constantine v. McDonald, 25 Idaho 342, 137 P. 531.)

G. W. Suppiger and M. T. Curry, for Respondent.

"Wife is not, as against creditors of her husband, estopped from claiming that lands standing in his name were purchased with her separate estate." (De Berry v. Wheeler, 128 Mo. 84, 49 Am. St. 538, 30 S.W. 338; Murphy v. Clayton, 113 Cal. 153, 45 P. 267; Breeze v. Brooks, 97 Cal. 72, 31 P. 743, 22 L. R. A. 256; 71 Cal. 169, 9 P. 670, 11 P. 885; Kemp v. Folsom, 14 Wash. 16, 43 P. 1100; Garner v. Second Nat. Bank, 151 U.S. 420, 14 S.Ct. 390, 38 L.Ed. 218.)

Only the best evidence in existence must be produced. (Lawrence v. Corbeille, 28 Idaho 329, 154 P. 495; 17 Cyc. 518; 2 Ency. Evidence, 308.)

If a wife entrusts money of her separate estate to her husband, on the understanding that he is to invest it in real estate for her benefit, and take the title in her name, and he uses the money in purchasing the land, but takes the title in his own name, a trust results in favor of the wife. (Martin v. Remington, 100 Wis. 540, 69 Am. St. 941, 76 N.W. 614; English v. Law, 27 Kan. 242; Howard v. Howard, 52 Kan. 469, 34 P. 1114; Heinrich v. Heinrich, 2 Cal.App. 479, 84 P. 326; Riley v. Martinelli, 97 Cal. 575, 33 Am. St. 209, 32 P. 579, 21 L. R. A. 33; Murphy v. Clayton, supra.)

FLYNN, District Judge. Budge, C. J., and Rice, J., concur.

OPINION

FLYNN, District Judge.

Claiming certain real estate as her separate property, respondent, a married woman, sues to quiet title thereto as against a deed obtained by appellant under an execution issued against respondent's husband. The cause was tried to the court and findings and decree were made in favor of respondent.

The principal errors assigned are the insufficiency of the evidence to support the findings, error in finding that the respondent is not estopped to assert claim to the property, and error as to the admission and rejection of certain evidence.

The record discloses that respondent and her husband are totally illiterate, neither one being able to read or write. Respondent testified that on May, 1904, she received $ 750 from her father in lieu of certain real estate located in the mountains of Tennessee, which he had deeded to her as a gift nine or ten years before; that her father wrote to her asking her if she would rather have $ 750 instead of the land; that she assented to this proposition and had the original deed returned to him with instructions to send the money in her husband's name; that the reason she directed it to be sent in her husband's name was that she was sick and could not look after anything; that her husband cashed the draft, which came in a letter, bringing the amount to her in gold.

At the conclusion of her evidence, no objection thereto having been theretofore made, a motion was made to strike her testimony with reference to getting the money from her father by a draft, and with reference to getting the money out of the land, for the reason that the testimony is merely secondary and is not the best evidence, and that the written deed from her for this land and the canceled draft are the best evidence. This motion was denied and the ruling of the court thereon is assigned as error.

As indicated in the opinion of this court in Chaney v. Gauld Company, 28 Idaho 76, 152 P. 468, this motion should have been granted; but, inasmuch as this was a trial to the court without a jury and respondent's son subsequently testified that he had returned the deed at her request to respondent's father, and respondent's father and sister testified that the deed had been burned by the father on its return to him, and that it had never been recorded, and, inasmuch as there was also subsequent testimony to show that the draft or check sent by the father had been so sent by the sister and wife of the father, and that they were dead, and that he did not know at what bank they got the check or draft; and there was also testimony on the part of the cashier of the Pullman Bank that he had some recollection of McKeehan having received some money by check from Tennessee, and it was also shown that the remittance sheets and records of the Pullman Bank were lost or destroyed, we think the error was harmless.

After selling their homestead, respondent and her husband moved to Pullman, Washington, in February, 1904. Respondent testified that because she could not count or tell the denomination of any money except gold or silver, she caused her husband, to whom the check or draft was sent by her father, to obtain gold coin therefor. She claims to have thereafter kept the coin in a sack between the feather bed and straw tick, and during her occasional absence from home to have transferred it to a baking-powder can hidden in a carefully concealed hole in the chicken-house. Early in the fall of 1904 respondent began to look for a place that she would be able to pay for with her own money, and in the spring following, she learned of the tract of land in controversy. She sent her husband to look at the land, and on his favorable report, gave him $ 40 in gold coin to bind a bargain for the land. The husband paid this money to...

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