Stewart v. Weiser Lumber Co., Ltd.

• Decision Date: 10 February 1912
• Citation: 121 P. 775,21 Idaho 340
• Parties: ALMA T. STEWART, Appellant, v. THE WEISER LUMBER CO., LTD., et al., Respondents
• Court: Idaho Supreme Court

121 P. 775

21 Idaho 340

ALMA T. STEWART, Appellant, v. THE WEISER LUMBER CO., LTD., et al., Respondents

Supreme Court of Idaho

February 10, 1912

QUIETING TITLE-HUSBAND AND WIFE-WIFE'S SEPARATE PROPERTY-COMMUNITY PROPERTY-MORTGAGE SIGNED BY HUSBAND-PROPERTY PURCHASED BY WIFE-CONSIDERATION-CONSTRUCTION OF STATUTE.

(Syllabus by the court.)

1. Where a married woman purchases a forty-acre tract of land as and for her own separate property and pays a part of the purchase price at the time of the purchase and assumes a mortgage then existing on said land, and executes a mortgage thereon for the balance of the purchase price, which mortgage and notes are signed by the husband, held, under the facts that said forty-acre tract of land is the separate property of the wife and that no part of it is community property.

2. The provisions of sec. 2922, Rev. Stats. of 1887, which are identical with the provisions of sec. 3107, Rev. Codes, 1909 were repealed by an act approved March 9, 1903 (Sess. Laws p. 345), and under the second section of said act, which is now sec. 2677, Rev. Codes, during the continuance of the marriage the wife has the management, control and absolute power of disposition of her separate property, without the signature of her husband, and may enter into contracts with reference to the same in the same manner and to the same extent, and with like effect, as a married man may in relation to his real and personal property.

3. The presumption that property acquired during marriage is community property may be rebutted.

4. Held, that the evidence clearly shows that the land involved in this case is the separate property of the wife.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action to quiet title to the separate property of the wife. Judgment for defendant. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

John H. Norris, and Feltham & Ryan, for Appellant.

"The presumption arising from a deed to a married woman, strengthened by the fact that the first payment was made with her separate property, and at the time of purchase, when her husband was solvent, they both declared that she was buying it for herself, with her own money, and was going to pay for it, is not rebutted by the fact that the remaining payments thereon were made with money obtained by their joint note secured by their joint mortgage on said land and other separate property of hers, he never having paid anything on the note, but it having been reduced by payments from her separate property, and the balance having been assumed by a purchaser of the property." (Heney v. Pesoli, 109 Cal. 53, 41 P. 819; Corbett v. Sloan, 52 Wash. 1, 99 P. 1025; Flournoy v. Flournoy, 86 Cal. 286, 21 Am. St. 39, 24 P. 1012; Woods v. Whitney, 42 Cal. 358; Higgins v. Higgins, 46 Cal. 259.)

Ed. R. Coulter, for Respondents.

"As a rule, property purchased with borrowed money by either spouse during the existence of the community is community property." (Northwestern & P. H. Bank v. Rauch, 7 Idaho 152, 61 P. 516; Schuyler v. Broughton, 70 Cal. 282, 11 P. 719; Yesler v. Hochstettler, 4 Wash. 349, 30 P. 398; Maine v. Scholl (Wash.), 57 P. 800; Heintz v. Brown, 46 Wash. 387, 123 Am. St. 937, 90 P. 211; U. S. Fidelity & Guaranty Co. v. Lee, 58 Wash. 16, 107 P. 870; Carlson v. Carlson, 10 Cal.App. 300, 101 P. 923.)

SULLIVAN J. Stewart, C. J., AILSHIE, J., concurring.

OPINION

SULLIVAN, J.

This action was brought by the appellant, who was plaintiff in the trial court, to quiet title to the northeast quarter of the southwest quarter of section 17, township 11 north of range 6 west of Boise meridian, in Washington county, and Lot 4, block 7, of Galloway's addition to the city of Weiser.

The cause was tried by the court with a jury and certain questions were submitted to and answered by the jury, to a part of which answers counsel for respondent excepted and moved to have set aside. Said motion was granted and the findings of the jury were set aside and the court thereafter filed its own findings of fact and conclusions of law, and entered judgment adjudging and decreeing that seventy-three per cent interest in said forty-acre tract of land was community property, and twenty-seven per cent interest was the separate estate of the wife; and also quieted the title to said lot 4 in appellant.

It appears from the evidence that appellant is a married woman and removed from the state of Indiana to Washington county, Idaho, about three years prior to the trial of this action, and has been making her home in said county since that time. Her husband, L. A. Stewart, was a carpenter by occupation and has been following his trade a part of the time during those three years in the city of Weiser. Not being able to secure continuous employment, he entered into partnership with one Hawes in running a carpenter and planing shop in that city. At that time the said Hawes was in debt to the respondent lumber company in the sum of about $ 300. The lumber company thereafter pressed for payment of said indebtedness against Hawes, and the said L. A. Stewart finally signed a certain promissory note with said Hawes as surety for said indebtedness. When said promissory note became due, the lumber company brought suit against Hawes and Stewart and attached and sold their carpenter-shop and attached said lot 4 and said forty-acre tract of land. Thereupon the appellant brought this suit to quiet title to said lot and said forty-acre tract, she claiming that she is the sole owner of said land and that her husband had no interest in or to either of said tracts.

Before coming to Weiser, the appellant owned certain property in the state of Indiana, which she inherited from her father's estate. When she went to Weiser, she took with her part of the proceeds of the sale of that separate estate and deposited $ 2,500 thereof in the First National Bank of Weiser. Thereafter plaintiff purchased the forty-acre tract above described from one Myers, through his agent, McKinney, paying $ 1,025 cash on the purchase price at the time of the purchase, and assumed a mortgage then on the forty-acre tract for the sum of $ 1,200, designated as the Viele mortgage, and for the remaining part of the purchase price gave two notes, aggregating $ 1,546.65, and secured the payment of the same by a second mortgage on said forty-acre tract, which mortgage and notes were executed by appellant and her husband, L. A. Stewart, in favor of said Myers. It appears that the purchase price agreed on for said land was $ 3,800, which also included some twenty-six head of cattle and farm machinery. Thereafter the appellant received from her separate estate $ 1,200, which she deposited in said bank at Weiser, and thereafter borrowed of one Morrison $ 1,100, and with this sum and sufficient of her own separate money paid off the Myers mortgage of $ 1,546.65 and interest, leaving unpaid the Viele mortgage of $ 1,200 and the Morrison mortgage of $ 1,100. It is clearly shown from the evidence that the husband has not been able to make a living for the family, and that the appellant has used some of her separate funds for that purpose as well as for making said payments on said forty-acre tract of land; and it clearly appears from the evidence that she purchased said land and lot as and for her own separate estate, and made all of the payments that were made on the same out of her own separate money; that she paid $ 525 for said lot; that the husband has never paid one cent on said land or lot, and all that he did was to sign said mortgage and notes, and it appears from the whole record that he signed them simply as a formality or assuming that it was necessary to do so in compliance with the provisions of sec. 3107, Rev. Codes. Said section is as follows:

"No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed in chapter 3 of this title, and her husband, if a resident of the state, joins with her in the execution of such grant or conveyance."

That section is found in the Revised Codes which was adopted by the legislature and approved by the governor January 12, 1909. This section is found in the Rev. Stats of 1887 of Idaho as sec. 2922, and in the 8th Territorial Session Laws of 1875, p. 596. Also see 1st Terr. Sess. Laws 1864, p. 528, and 4th Terr. Sess. Laws 1867, p. 138. Sec. 2495 of the Rev. Stats. of 1887, which provided that all property of the wife, owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, is her separate property, was amended. (See Sess. Laws, 1903, p. 345.) The amended section provides, among other things, that during the continuance of the marriage, the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property and may enter into contracts with reference to the same in the same manner and to the same extent and with like effect as a married man may in relation to his real and personal property. The code commissioner who made a revision, compilation and codification of the laws of the state of Idaho, under an act approved March 12, 1907 (Sess. Laws 1907, p. 178), retained in said Revised Codes said sec. 2922 of the Rev. Stats. of 1887, making it sec. 3107 of the Rev. Codes of 1909. He also retained a part of the amendment of sec. 2495, Rev. Codes, as amended by Laws of 1903, p. 345, as sec. 2677 of the Rev. Codes. So our statutes stand to-day as containing sec. 2677, which gives the wife the management, control and absolute...