Strong v. Eakin

• Citation: 11 N.M. 107,66 P. 539
• Parties: STRONGv.EAKIN et al.
• Decision Date: 02 October 1901
• Court: Supreme Court of New Mexico

11 N.M. 107

66 P. 539

STRONG

v.EAKIN et al.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1901.

Syllabus by the Court.

1. The Spanish-Mexican law as to community or acquest property became the law of this territory from the time of the cession, and is still in force in so far as the same has not been abrogated or modified by statute.

2. This law creates a presumption that all property acquired and held by husband and wife during coverture is community property, and is subject to the payment of the husband and community debts, and this presumption casts the onus upon the claimant of a separate estate.

3. The presumption of law is that every debt contracted during the existence of the marriage is the debt of the community.

4. The presumptions above referred to constitute a rule of evidence, and while sections 1509-1511, Comp. Laws 1897, enacted in 1884, and known as the “Married Woman's Act,” and section 2676, Comp. Laws 1897, enacted in 1889, modify, to some extent, the rigors of the civil and common laws, by enlarging the rights and privileges of married women to receive, enjoy, hold, and dispose of their separate property, and provide exemption from liability in certain cases, the above presumptions and rule of evidence are still in force as to the property acquired by the husband or by both spouses during the existence of the marriage community, and to community debts also, in the absence of evidence of a separate estate, sufficient to overcome the legal presumptions.

5. In the absence of any evidence of a separate estate, the above presumptions are conclusive, and will warrant a recovery, but they may be overcome by proof of a separate estate sufficient to constitute a preponderance.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by Heber T. Strong against Mattie L. Eakin and others. Judgment for defendants, and plaintiff appeals. Reversed.

This cause was tried by the court, jury being waived. At the conclusion of the plaintiff's evidence, defendants' counsel moved the court to find the issues for the defendants, and dismiss the complaint, which motion was sustained by the court, and judgment was rendered dismissing the complaint, and for costs against the plaintiff. From this judgment the plaintiff was granted and perfected an appeal to this court.

The facts disclosed by the record are that defendants James D. Eakin and Mattie L. Eakin were married in the year 1884; that James D. Eakin and one John Brady entered into a copartnership and began business in the city of Albuquerque in the year 1892; that on the 22d day of July, 1895, the First National Bank of Albuquerque recovered a judgment against the firm of Eakin & Brady for the sum of $1,776,65, the judgment to bear 12 per centum interest per annum, and by a stipulation of the parties it is agreed that the consideration of this judgment was a promissory note dated December 2, 1893, given for money borrowed by said firm in the usual course of their business; that on the 9th day of February, 1892, S. N. Weil & Co. recovered a judgment against said firm of Eakin & Brady for the sum of $97.46, the judgment to bear 6 per centum interest per annum; that on the 25th day of July, 1894, A. J. Davis Sons & Co. recovered a judgment against the firm of Eakin & Brady for the sum of $262.95, the judgment bearing 6 per centum interest per annum, and by the proofs it is shown that the judgment was recovered upon two promissory notes, dated August 4, 1893, and December 7, 1893, and that the notes were given for goods purchased by said firm in the conduct of business; that on the 27th day of October, 1898, the firm was by the court adjudged bankrupt upon their own voluntary petition, and upon the 25th day of April, 1899, Heber T. Strong, the plaintiff, was duly selected and appointed trustee of the bankrupt estate of Eakin & Brady, and qualified as such. A stipulation was filed by the parties in which it is agreed that all of the judgments above referred to were presented and properly allowed as claims against said bankrupt estate of Eakin & Brady; that Mattie L. Eakin, one of the defendants, entered into a copartnership with one Charles Melini, and that prior to and at the time this suit was brought said partners were engaged in the wholesale liquor business in the city of Albuquerque, under the firm name of Melini & Eakin; and that Charles Melini is the owner of an undivided one-half interest in the property and assets of the firm of Melini & Eakin, subject to the payment of its indebtedness. It is admitted that the assets of the bankrupt estate of Eakin & Brady are insufficient to pay the debts of such firm, and, so far as the record discloses, the judgments above referred to are wholly unpaid. The bill prays for the appointment of a receiver to take charge of the property and assets of the firm of Melini & Eakin, and that an account may be taken of the interest of said marriage community, composed of James D. Eakin, bankrupt, and Mattie L. Eakin, in the said firm, and that the assets of said firm be sold, and debts of said partnership paid, and that after the payment of said debts the share of said community in and to said assets be paid to the plaintiff, and for other and further relief.

The presumption of law is that every debt contracted during the existence of the marriage, is the debt of the community.

A. B. McMillan and Johnston & Finical, for appellant.

Childers & Dobson, for appellees.

McFIE, J. (after stating the facts).

From the facts above stated, it is evident that the controversy involves the one-half interest in the property and assets of the firm of Melini & Eakin, not claimed by Melini, and over and above the indebtedness of said firm. The plaintiff seeks to subject this property to the payment of the judgments above referred to, and which are alleged to be indebtedness of the marriage community of James D. and Mattie L. Eakin, upon the ground that such property is community property, being in the name of Mattie L. Eakin, one of the spouses of the marriage community of James D. and Mattie L. Eakin, which originated in the year 1884 and still exists. The defendants in their answer deny that the judgments are community debts, and also deny that the property involved is community property, and subject to the alleged indebtedness, but do not affirmatively allege that the property is separate property of Mattie L. Eakin.

This court has repeatedly held that the Spanish-Mexican law as to community or acquest property became the law of this territory from the time of the cession, and is still in force in so far as the same has not been modified by statute. Barnett v. Barnett, 9 N. M. 205, 50 Pac. 337; Crary v. Field, 9 N. M. 222, 50 Pac. 342. In the case of Barnett v. Barnett, supra, decided by this court October 2, 1897, the court considered this subject very fully, and held that, where the spouses are both alive, the law in relation to their community property has not been changed by statute in this territory, and says: “That any change of the Spanish law as to acquest property, under the foregoing statutes, has been made, cannot be seriously pretended; and that the foregoing authorities decisively establish that, in such contingency, the law upon the subject in operation at the date of cession of the territory must prevail, should be unhesitatingly admitted.” There was no evidence given upon the trial as to the source from which the property or money came which was invested and used by defendant James D. Eakin when he became a copartner in the firm of Eakin & Brady. The record is silent as to whether this property was acquired before or after the intermarriage of James D. and Mattie L. Eakin. The defendants in their answer, however, admit that they were married in the year 1884, and the evidence shows that the firm of Eakin & Brady began business in the year 1892, or about eight years after the marriage. At the close of the evidence for the plaintiff, the defendants did not offer any evidence tending to show when or in what manner the property invested by James D. Eakin in the partnership business of Eakin & Brady was acquired, or tending to show that such property was the separate property of James D. Eakin prior to the marriage. On the contrary, defendants' counsel moved the court to find the issues for the defendants, and to dismiss the complaint, and the court sustained the motion, and rendered judgment dismissing the complaint. The plaintiff here insists that, in the absence of proof, the law creates a presumption that property acquired by either spouse to a marriage community, during its existence, is community property, and subject to the payment of community debts, and cites numerous authorities in support of their contention. Referring to the authorities cited, we find that this question was before this court in the case of Neher v. Armijo, 9 N. M. 325, 54 Pac. 236, and in an opinion rendered August 16, 1898, the court said: “It is insisted by the learned counsel for defendant below that ‘if appellant's ancestor, Ambrosio Armijo, acquired title by deed from the New Mexico Town Company, then the property in dispute was community property, and the widow became the owner of the undivided half thereof upon the death of her husband.’ Presumptively, this proposition is true; conclusively, it is not. The authorities uniformly lay down the rule that, in the absence of proof to the contrary, the law presumes a community.” Ballinger, in his work on Community Property (section 123), says: “It is a firmly-settled rule, and the law creates the presumption, that all property held by husband or wife is common property, and subject to the payment of the debts of the husband and community.” In the case of Meyer v. Kinzer, 12 Cal. 251, 73 Am. Dec. 539, the court, speaking by Justice Stephen J. Field, said: “The provisions of the statute are borrowed from the Spanish law, and there is...