Morton v. Fuller

• Citation: 48 Idaho 203,281 P. 377
• Decision Date: 26 September 1929
• Docket Number: 5263
• Parties: BERTHA J. MORTON, Appellant, v. M. L. FULLER, Respondent
• Court: United States State Supreme Court of Idaho

281 P. 377

48 Idaho 203

BERTHA J. MORTON, Appellant, v. M. L. FULLER, Respondent

No. 5263

Supreme Court of Idaho

September 26, 1929

APPEAL AND ERROR - FINDINGS - EVIDENCE - SUFFICIENCY OF-PRESUMPTIONS - HUSBAND AND WIFE - SEPARATION AGREEMENT - VALIDITY OF-PRESUMPTIONS.

1. Where evidence is not in record, reviewing court must presume that evidence was sufficient to sustain findings of trial court.

2. In action by wife to recover funds claimed to have been given husband in trust for her, a separation agreement between husband and wife set up as defense to such action was presumptively valid, and it was unnecessary to plead its fairness.

3. In action by wife to recover funds claimed to have been given husband in trust for her, where no issue was presented as to fairness of separation agreement which husband claimed settled all property rights between husband and wife, it was unnecessary for court to make finding thereon.

4. In action by wife to recover funds claimed to have been given husband in trust for her, where wife had not established trust, refusal of court to strike from answer plea of statute of limitations, if error, held harmless, as wife was not prejudiced thereby.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. Robert M. Terrell, Judge.

Action to recover trust funds. Judgment for the defendant. Affirmed.

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

Alvin Denman, for Appellant.

A husband who sets up a separation agreement as a defense has the burden of showing that it was entered into fairly, and without misrepresentation, overreaching or fraud, and that its provisions are equitable and just under all the circumstances. (30 C. J. 1061; 13 R. C. L. 1367; Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288; Howell v. Howell, 42 Okla. 286, 141 P. 412; Coons v. Coons, 128 Okla. 172, 261 P. 944; Cheuvront v. Cheuvront, 54 W.Va. 171, 46 S.E. 233; Garver v. Miller, 16 Ohio St. 527; Bowers v Hutchinson, 67 Ark. 15, 53 S.W. 399.)

A. H Wilkie, for Respondent, cites no authorities on points decided.

GIVENS J. Budge, C. J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, J.

Appellant sued to recover funds claimed to have been given her husband in trust for appellant. Respondent denied the trust, urged the statute of limitations had run against an action as for money had and received to recover these funds, and further claimed that all property rights between the parties had been settled by agreement pending a divorce later granted.

The court found that appellant had failed to establish the allegations of her complaint and that the agreement settled all their property rights. Appellant contends the agreement did not settle her separate property which she claims these funds were, because they were not specifically mentioned, but the court found they were settled, and since the evidence is not in the record, we must presume that it was sufficient to sustain the findings as above indicated. (State v. Perry, 4 Idaho 224, 38 P. 655; McCornick v. Brown, 22 Idaho 52, 125 P. 197; Needham v. Needham, 34 Idaho 193, 200 P. 346; Gaines v. Waters, 64 Ark. 609, 44 S.W. 353; Means v. Gotthelf, 31 Colo. 168, 71 P. 1117; Means v. Stow, 31 Colo. 282, 73 P. 48; Knickerbocker v. McKindley Coal & Mining Co., 172 Ill. 535, 64 Am. St. 54, 50 N.E. 330; 4 C. J. 196.)

Appellant urges that respondent had the burden of showing that the separation agreement was fairly entered into without overreaching or fraud.

Separation agreements are presumptively valid and it is unnecessary to plead their fairness when set up as a defense in an action of this kind. (Daniels v. Benedict, 97 F. 367, 38 C. C A. 592.) No issue having been presented on the fairness of...