Swager v. Peterson

• Decision Date: 02 October 1930
• Docket Number: 5589
• Citation: 291 P. 1049,49 Idaho 785
• Parties: FRANCES SWAGER, Respondent, v. AARON PETERSON, Appellant
• Court: Idaho Supreme Court

291 P. 1049

49 Idaho 785

FRANCES SWAGER, Respondent, v. AARON PETERSON, Appellant

No. 5589

Supreme Court of Idaho

October 2, 1930

HUSBAND AND WIFE-COMMUNITY PROPERTY-PRESUMPTION-PERSONAL INJURY-DAMAGES-WIFE'S SEPARATE PROPERTY.

1. Note acquired by wife during coverture from husband will be presumed community property, rather than wife's separate property, unless contrary is proved (C. S., sec. 4660).

2. Wife's testimony that she purchased note with separate funds and was owner thereof held mere conclusion insufficient to overcome presumption note was community property (C. S., sec. 4660).

3. Damages recovered for injuries to wife are community property.

4. Note purchased by wife from husband out of recovery in injury action remains community property, unless given to wife by husband when free from debt.

5. Evidence held insufficient to sustain finding wife was owner of note sued on, and that note was purchased with her separate funds.

6. Husband has control of community property and is "necessary and proper party" to sue on note belonging to community (C. S., sec. 4666).

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Action on promissory note. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with directions. Costs to appellant.

A. S Dickinson, for Appellant.

Money arising from a settlement with husband and wife of a claim for damages for personal injury to the wife is community property. (Giffen v. City of Lewiston, 6 Idaho 231,55 P. 545; Labonte v. Davidson, 31 Idaho 644 175 P. 588; Lindsay v. Oregon Short L. R. R. Co., 13 Idaho 477, 90 P. 984, 12 L. R. A., N. S., 184.)

The presumption of the law is that all property acquired during coverture belongs to the community, and the burden is on the person who asserts it to be separate property to show such fact by a fair preponderance of the evidence. (Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468; Olyear v. Olyear, 35 Idaho 732, 208 P. 857; Gooding Milling & Elevator Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772.)

L. R Thomas, for Respondent.

"Money given by the husband to the wife is her property, and if she lends it to him, and takes his note therefor, it is valid, and he may, when in failing circumstances, pay it in preference to any other debt." (Laird v. Davidson, 124 Ind. 412, 25 N.E. 7; Bates v. Papesh, 30 Idaho 529, 166 P. 270; Gooding Milling & E. Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772.)

There is nothing in the community property statutes of Idaho which could prevent the ordinary business transaction of the sale, indorsement and delivery of a negotiable instrument by the husband to the wife. Upon such a transaction, the note would become her separate property, and the husband would not be a proper party to the wife's action for collection. (Lew Choy v. Jim Sing, 125 Wash. 631, 216 P. 888.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Respondent, a married woman living with her husband, sued on a promissory note, indorsed and delivered to her by her husband, the payee therein named, without pleading her coverture or alleging that the debt sued upon was her separate property (see Salisbury v. Spofford, 22 Idaho 393, 126 P. 400), and without joining her husband as a party. Appellant answered, admitting the execution and delivery of the note, and alleging that respondent and the indorser, the payee named in the note, now are and during all the times mentioned in the complaint were wife and husband; denied that respondent was the owner or holder of the note in question, alleging that it was the property of the husband, and, in effect, that it was community property; and set up what purports to be a counterclaim against the husband as head of the community.

The case was tried to a jury and on the completion of the testimony each party moved for an instructed verdict. The jury was thereupon discharged, and the court took the matter under advisement. Later, findings of fact and conclusions of law were made and judgment in favor of plaintiff entered as prayed for. Defendant appeals from the judgment.

The only evidence bearing upon the nature of the ownership of the note in question is the testimony of the respondent. She testified on this point, in substance and effect, that the note was purchased from her husband with her own separate funds; that at the time the action was commenced she was the owner and holder of the note; that she married Carl W. Swager, the payee named in said note, at Pasadena in 1912, and that they have ever since remained husband and wife, living together as such; that she paid for the note sued upon out of the proceeds of moneys received in settlement of a claim for personal injuries sustained by her in an automobile accident in Bonneville county in May, 1925.

The note, having been acquired by her during coverture, will be presumed to be community property, rather than respondent's separate property, unless the contrary is shown by the evidence. (C. S., sec. 4660; McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220; Moore v. Croft, 47 Idaho 568, 277 P. 425; Vaughan v. Hollingsworth, 35 Idaho 722, 208 P. 838.)

Respondent's testimony that she purchased the note with her own separate funds and was the owner and holder thereof amounts to a legal conclusion having insufficient evidentiary value to overcome the presumption that it is community property. Respondent must go further and prove that she owned the note before marriage, or acquired it "during marriage through a legally recognized source of separate ownership, and the proofs must go to the very point of showing the fact of such an acquisition." (See McKay on Community Property, 2d ed., sec. 223, p. 169; Brodsky v. Brodsky, 172 Minn. 250, 215 N.W. 181; Scott v. Witt, (Tex. Civ. App.) 41 S.W. 401; Eaton v. Locey, 22 Cal.App. 762, 136 P. 534; Brown v. Cloud County Bank, 2 Kan. App. 352, 42 P. 593.)

This court has repeatedly held to the effect that damages recovered on account of personal injuries to the wife are community property. (Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Lindsay v. Oregon Short Line R. R Co., 13 Idaho 477, 90 P. 984, 12 L. R. A., N. S., 184; Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Muir v. City of Pocatello, 36 Idaho 532, 212 P....