Northwestern & Pacific Hypotheek Bank v. Rauch

• Decision Date: 23 May 1900
• Citation: 61 P. 516,7 Idaho 152
• Parties: NORTHWESTERN AND PACIFIC HYPOTHEEK BANK v. RAUCH
• Court: Idaho Supreme Court

61 P. 516

7 Idaho 152

NORTHWESTERN AND PACIFIC HYPOTHEEK BANK v. RAUCH

Supreme Court of Idaho

May 23, 1900

SEPARATE PROPERTY-COMMUNITY PROPERTY.-Property purchased in the name of the wife, partly with funds of her separate estate, and partly with money borrowed during the existence of the community, is the separate estate of the wife, to the extent to which funds of her separate estate is used and community property to the extent to which such borrowed money is used in its purchase. As a rule, property purchased with the money borrowed by either spouse during the existence of the community, is community property.

MORTGAGE BY HUSBAND-WIFE'S FAILURE TO ACKNOWLEDGE.-The husband may encumber by mortgage, without the wife joining him, an undivided interest in lands not a homestead, nor used as a residence, which belongs to the community, although the wife may have a separate estate in said lands.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded. Costs awarded to appellants.

George W. Goode and L. N. B. Anderson, for Appellants, cite no authorities upon the points decided.

Forney & Moore, for Respondent.

All property acquired after marriage and during the marital relations by either spouse is community property except such as is acquired by gift, bequest, devise or descent, and the rents and profits of the separate property of the wife, when by the instrument by which any separate property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use. (Rev. Stats., secs 2495-2497.) In the absence of evidence as to the law of another state, the presumption is that such law is the law of this state. (Marsters v. Lash, 61 Cal. 622; Mortimer v. Marder, 93 Cal. 172, 28 P. 814.) All property acquired by either the husband or wife or both during the matrimony by an onerous title or by joint lucrative title, is presumed to belong to the community until the contrary is established that the acquisition was made in one of the statutory ways for acquiring separate property. (Ballinger on Community Property, secs. 159-162, inclusive and cases cited; McDonald v. Badger, 28 Cal. 394.)

QUARLES J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action was brought by the respondent to foreclose a mortgage upon certain real estate. Judgment was rendered in favor of the respondent, from which the appellants appealed to this court; and upon said appeal said judgment was reversed by this court, principally upon the ground that the evidence shows that Margaret Rauch, wife of the mortgagor, A. Rauch did not acknowledge such mortgage. (See N.W. etc. Bank v. Rauch, 5 Idaho 752, 51 P. 764. Upon a retrial the district court found that the mortgaged property was at the time of the execution of the mortgage community property; and on this ground the court determined that the execution of the mortgage by the wife was unnecessary, and that the mortgage, having been executed and...