Oylear v. Oylear

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BUDGE, J.
• Citation: 208 P. 857,35 Idaho 732
• Decision Date: 02 August 1922
• Parties: S.D. OYLEAR, J. M. OYLEAR, G. W. OYLEAR, E. E. OYLEAR, M. M. OYLEAR, ELZIE OYLEAR, ESTEL FRANK PRINCE, EDWARD PRINCE and CLYDE PRINCE, Appellants, v. JESSE OYLEAR, HAZEL OYLEAR, DORA OYLEAR, MARY ALICE OYLEAR, and JAMES J. KEANE, Executor of the Estate of JONATHAN C. OYLEAR, Respondents

208 P. 857

35 Idaho 732

S.D. OYLEAR, J. M. OYLEAR, G. W. OYLEAR, E. E. OYLEAR, M. M. OYLEAR, ELZIE OYLEAR, ESTEL FRANK PRINCE, EDWARD PRINCE and CLYDE PRINCE, Appellants,
v.
JESSE OYLEAR, HAZEL OYLEAR, DORA OYLEAR, MARY ALICE OYLEAR, and JAMES J. KEANE, Executor of the Estate of JONATHAN C. OYLEAR, Respondents

Supreme Court of Idaho

August 2, 1922

HOMESTEAD-COMMUNITY OR SEPARATE PROPERTY-CONVEYANCES-DEVOLUTION OF HOMESTEAD PREMISES-ORAL AGREEMENT-LACHES.

1. Where real property has been conveyed to a married woman by a deed which shows on its face a consideration paid by her, the legal presumption is that the property was purchased by community funds, and it thereupon acquired the status of community property.

2. Held, that there is sufficient competent evidence in the record in this case to support the finding of the lower court that the premises in litigation had been acquired by Jonathan C. Oylear and his wife Sarah A. Oylear by their joint efforts and was community property, and that the fact of said premises having been deeded by the husband to a third party and by said third party reconveyed to the wife, did not change its character as community property.

3. A homestead selected under the provisions of Rev. Stats. 5447 (now C. S. 7571), from the community property or from the separate property of the person selecting or joining in the selection of the same, upon the death of either the husband or wife vests absolutely in the survivor in fee simple.

[35 Idaho 733]

4. Held, that upon the death of Jonathan C. Oylear, the title to the premises described in the declaration of homestead made by him vested by operation of law in his widow, Mary A. Oylear, to the exclusion of his children and grandchildren by a former marriage.

5. Held, that the declarations of homestead made by Jonathan C. Oylear and Sarah A. Oylear sufficiently complied with the requirements of Rev. Stats., sec. 3071, the statute in existence at the dates they were made, both as to form and as to substance.

6. Courts of equity do not favor antiquated or stale demands, and refuse to interfere where there has been gross laches in commencing the proper action, or long acquiescence in the assertion of adverse rights.

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

Action for partition of real property. Judgment quieting title in respondents. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Benj. F. Tweedy and O. D. Burns, for Appellants.

The homestead declaration of Mrs. Oylear was valid. It does not recite in the words of the statute the reason why Mrs. Oylear made it, but merely states that her husband had made no declaration and that she made it for their joint benefit. (Rev. Stats., sec. 3071; Wilcox v. Deere, 5 Idaho 545, 51 P. 98.)

The execution of a homestead declaration is ex parte and of an ex parte instrument, and the statutes as to the execution and as to the contents must be strictly complied with. (Jones v. Gunn, 149 Cal. 687, 87 P. 577.)

The farm was a gift, through a trustee, to the first Mrs. Oylear, and became her separate property. (Glover v. Brown, 32 Idaho 426, 184 P. 649.)

Where the husband receives a consideration from his wife for a deed from him to her, it is a presumption of law that the land was paid for by her own separate funds. (Taylor v. Opperman, 79 Cal. 468, 21 P. 869; Carter v. McQuade, 83 Cal. 274, 23 P. 348; Ions v. Harbison, 112 Cal. 260, 44 P. 572; Hamilton v. Hubbard, 134 Cal. 603, 65 P. 321. 66 P. 860.)

Section 1474 of the California statutes was amended ten days later than sec. 1265 of California's Civil Code. (Weinrich v. Hensley, 121 Cal. 647, 54 P. 254.) Therefore sec. 1474 is the latest expression of the legislative will upon the subject, and supersedes the provisions thereon in sec. 1265, Civil Code. (In re Fath's Estate, 132 Cal. 609, 64 P. 995.)

All the acts contained in Rev. Statutes of 1887 were simultaneously adopted by the legislature, and for that reason alone, sec. 5447 cannot be held to "supersede" sec. 3073, found in the chapter which deals with the creation of homesteads; consequently, we are forced to disregard the California decisions, and undertake the task of harmonizing the Idaho statutes.

J. H. Forney, for Respondents.

At the time the homestead declaration was filed on the premises in controversy the same was community property of Jonathan C. Oylear and Sarah A. Oylear. (Schuyler v. Broughton, 70 Cal. 283, 11 P. 719; Platt on Property Rights of Married Women, sec. 34, p. 110; Tillaux v. Tillaux, 115 Cal. 663, 667, 47 P. 691; Rev. Stats., sec. 5712.)

The homestead declaration by Sarah A. Oylear was a valid declaration. (Rev. Stats., sec. 3971; Mellen v. McMannis, 9 Idaho 418, 423, 75 P. 98; First Nat. Bank of Hailey v. Glenn, 10 Idaho 224, 109 Am. St. 204, 77 P. 623.)

But it is wholly immaterial whether the property in question was community property or the separate property of Sarah A. Oylear at the time of making her declaration of homestead in 1891. (Rev. Stats., sec. 5447; In re Croghan, 92 Cal. 370, 28 P. 570; In re Burdick, 76 Cal. 639, 640; 18 P. 805; In re Fath's Estate, 132 Cal. 609, 64 P. 995; Saddlemire v. Stockton Sav. & L. Soc., 144 Cal. 650, 79 P. 381.)

Jonathan C. Oylear succeeded to all the rights and benefits of Sarah A. Oylear at the time of her death in 1897. Also Mary A. Oylear succeeded to all the rights and benefits of Jonathan C. Oylear at the time of his death in 1919. (C. S., sec. 7576; In re Fath's Estate, supra.)

Mary A. Oylear succeeded to the homestead in 1919 on the death of Jonathan C. Oylear by operation of law. No probate administrator was necessary. The will was in harmony with and not inconsistent with the law governing the devolution of homesteads. The will gave all the property, including the homestead, to the widow. (Rhoton v. Blevin, 99 Cal. 645, 34 P. 513.) The plaintiffs, by their laches and inexcusable delay, are precluded from any relief whatever. ( Badger v. Badger, 2 Wall. (U.S.) 87, 17 L.Ed. 836; Ryan v. Woodin, 9 Idaho 525, 75 P. 261.)

BUDGE, J. McCarthy and Dunn, JJ., concur.

OPINION

[35 Idaho 735] BUDGE, J.

This is an action to partition certain real property, instituted in the court below by certain brothers and sisters, and children of deceased brothers and sisters, descendants of Jonathan C. Oylear by his first wife, Sarah A., against Mary Alice Oylear and certain children, descendants of Jonathan C. Oylear by his second wife, Mary Alice, and against James J. Keane, executor of the estate of Jonathan C. Oylear.

From the record it appears that on or about January 10, 1885, Jonathan C. Oylear and Sarah A. Oylear were husband and wife, and that on May 16, 1891, they were residing upon the premises involved in this litigation. Prior to June 9, 1885, Jonathan C. made a homestead entry in the United States land office upon the lands described in the appellants' [208 P. 858] complaint, and on or about January 9, 1885, made his final proof, received his final receipt, and made a warranty deed to these same lands to one E. Fix. On June 9, 1886, he received...