Thorn v. Anderson

• Decision Date: 17 December 1900
• Citation: 63 P. 592,7 Idaho 421
• Parties: THORN v. ANDERSON, SHERIFF
• Court: Idaho Supreme Court

63 P. 592

7 Idaho 421

THORN v. ANDERSON, SHERIFF

Supreme Court of Idaho

December 17, 1900

MARRIED WOMAN'S SEPARATE PROPERTY-INCREASE-EXEMPTION FROM EXECUTION AGAINST HUSBAND.-Under the provisions of section 4479 of the Revised Statutes, the increase of a married woman's separate property (in this case consisting of cattle) is exempt from execution against her husband.

(Syllabus by the court.)

APPEAL from District Court, Cassia County.

Affirmed. Costs of this appeal awarded to the respondent.

Hawley & Puckett, for Appellants.

Our statute provides, section 2497 of the Revised Statutes, that the rents and profits of the separate property of the husband or wife is community property; unless, by the instrument by which any such property is acquired by the wife, it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for the debts of the husband. The increase of animals inure to the benefit of the community. (Bonner v. Gill, 5 La. Ann. 629; Du Crest v Bijean, 8 Mart., N. S. (La), 192; Frederic v Frederic, 10 Mart., O. S. (La.), 188.) The increase during the marriage, of cattle which are the separate property of the wife are community property. (Howard v. York, 20 Tex. 670.) The increase, during the marriage, of cattle and horses which were before marriage the wife's separate property, belongs to the community. (Bateman v. Bateman, 25 Tex. 270; Cartwright v. Cartwright, 18 Tex. 628.) We further contend that if the five head of the original stock were the separate property of the respondent, it was intermixed and commingled with the increase which was community property, so that it lost its identity, and the community being the paramount estate drew the whole to it, and all the cattle levied on were community property, and subject to the debts of her husband. (2 Kent's Commentaries, 363-365; Yesler v. Hochstettler, 4 Wis. 356, 65 Am. Dec. 314, and cases therein cited.)

W. L. Maginnis, for Respondents.

The gift to respondent in this case consisted of cattle, which are short-lived animals, and if the contention of appellant's counsel be true, that the increase of these animals is community property, and this without regard to the expense of producing of such increase, then the purpose and object of the donor is defeated by the mere agency of time. In the case of Bogard v. Corey, 82 Ill. 19, the court said: "It would be but a mockery that a married woman might own and control her property, but all the increase or produce should belong to the husband. To so hold would be to render her ownership useless and defeat the very purpose of the ownership of the property." The sprout savors of the root and goes the same way, and the increase of separate property is separate, whether the statutes say so or not. (Stewart on Husband and Wife, par. 227; Wells on Separate Property of Married Women, par. 100; Harris v. Van De Vanter, 17 Wash. 489, 50 P. 50; George v. Ransom, 15 Cal. 324, 76 Am. Dec. 490.) Appellant's counsel further contends that the cattle were intermixed with the alleged community property of the spouses, so that it lost its identity, and the community being the paramount estate, drew the whole of it to it; in answer to which we say that the testimony shows that neither the community nor the husband had any property of like character to mix or commingle with the cattle in controversy; yet, if there was such commingling it would not bar the respondent. (Irwin v. Jones, 24 Cal. 98; Walsh v. Walsh, 84 Cal. 101, 23 P. 1099, 70 Cal. 282, 11 P. 719.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This action was brought by the respondent against the appellants to recover the sum of $ 2,500, the alleged value of forty-eight head of cattle taken by the defendant Anderson as sheriff, under a writ of attachment, and thereafter sold under execution issued out of the district court of Cassia county against the property of A. S. Thorn, the husband of ...