Von Rosenberg v. Perrault
| Decision Date | 10 January 1898 |
| Parties | VON ROSENBERG v. PERRAULT |
| Court | Idaho Supreme Court |
STATUS OF COMMUNITY PROPERTY UPON DEATH OF ONE SPOUSE UNDER THE LAW OF 1874-SURVIVING SPOUSE HOLDS THE LEGAL TITLE ONE-HALF FOR HIMSELF, THE OTHER IN TRUST FOR THE LAWFUL HEIRS, THE CHILDREN.-S. and wife acquired lands during coverture, the title being conveyed to S. in 1871 and 1873; the wife died in 1877, leaving her husband and four children surviving her; S again married; in 1887, S. and his second wife by deed, for the consideration of $7,450, conveyed said lands to K.; in 1895, the children of S. and his deceased wife brought suit against the heirs of K., who had died, for a partition of the said lands, claiming under their deceased mother by reason of an act passed in 1874, and repealed in 1879, giving the community property, on the death of one spouse, one-half to the surviving spouse, the other half to the descendants of the deceased spouse, subject to debts of the deceased plaintiffs did not allege or prove the extent of the assets and liabilities of the community at the death of their deceased mother, nor that the community was free from debt nor that K. purchased with notice of their claims; the trial court gave judgment of nonsuit, from which plaintiffs appealed. Held, that the surviving spouse held the legal title one-half for himself, the other in trust for plaintiffs; that the husband could sell the lands to pay community debts, and that the existence of such debts and of the necessity of the sale are presumed from the lapse of time and that the judgment of nonsuit was proper.
(Syllabus by the court.)
APPEAL from District Court, Ada County.
Affirmed, with costs.
S. L. Tipton and W. E. Borah, for Appellants.
The statute, under and by reason of which the plaintiff asserts title to one-half the property in question, reads as follows: "Upon the dissolution of the community by the death of either the husband or the wife, one-half of the common property shall go to the survivor and the other half to the descendants of the deceased husband or wife; the whole, however, is subject to payment of the debts of the deceased. If there be no descendants of the deceased husband or wife, the whole shall go to the survivor subject to such payment. (8th Sess. Laws of Idaho Territory, sec. 11.) As we understand, the ruling of the court was based largely upon the proposition that the burden was upon the children, even after the time of ten years had elapsed, to show that the property was not sold to pay community debts or that there were no community debts. As we are placed in a position of defending the motion upon all grounds we call attention to the following authorities in support of the proposition above stated: Broad v. Broad, 40 Cal. 493; Broad v. Murray, 44 Cal. 228; Johnson v. Bush, 49 Cal. 198; Johnson v. San Francisco Sav. Union, 63 Cal. 554; Freeman on Cotenancy, sec. 149; Platt on Property Rights of Married Women, pp. 7, 136. As to the burden of proof to show that there were debts and that the property was sold to pay community debts, we call particular attention to the following authorities: Moody v. Butler, 63 Tex. 210; Johnson v. Harrison, 48 Tex. 257; Jones v. Jones, 15 Tex. 143; Murphy v. Jurey, 39 La. Ann. 785, 2 So. 575; Wright v. McGinty, 37 Tex. 733; Gay v. Herbert, 44 La. Ann. 301, 10 So. 775; Easthan v. Sims, 32 S.W. 359. No administration was necessary under this statute. (Ord v. DeLagara, 18 Cal. 67; Packard v. Arellanes, 17 Cal. 525, 536; Sanger v. Heirs of Moody, 60 Tex. 96.) Upon the death of the wife the heirs of the deceased wife take a legal title as a tenant in common with the surviving husband in the community property. (Platt on Property Rights of Married Women, p. 7; Estate of Thompkins, 12 Cal. 124; Ord v. De La Guerra, 18 Cal. 74.) The legal title is in the survivor and children, and they hold as tenants in common. (Platt on Rights of Married Women, sec. 39, p. 136; Johnson v. Harrison, 48 Tex. 268; McAllister v. Farley, 39 Tex. 552; Kirkland v. Little, 41 Tex. 460.) In the absence of evidence to establish the fact that the lands are sold to pay community debts the executors' deed conveyed but a half interest in the land. (Moody v. Butler, 36 Tex. 210; Jones v. Jones, 15 Tex. 143.) Although the heirs of the wife receive the property subject to the community debts, it is now settled that their action for the property may be maintained without allegation or proof of the liquidation or solvency of the community. (Murphy v. Jurey, 39 La. Ann. 785, 2 So. 575; Glasscock v. Clark, 33 La. 584.) There being no evidence of debts the presumption is none existed, and the burden is on the defense to show there were debts. (Johnson v. Harrison, 48 Tex. 257; Hensel v. Kegans, 79 Tex. 349, 15 S.W. 275; Taylor v. Taylor, 26 S.W. 819; Galveston etc. R. R. Co. v. Butler, 56 Tex. 506.)
Hawley & Puckett, George Ainslie and Brown & Cahalan, for Respondents.
The action is under section 4560 of the Revised Statutes. In order to maintain the action the parties must hold and also be in possession. The plaintiffs do not hold the land nor are they in possession of it. This form of action cannot be maintained by one out of possession against adverse claimants in possession. (Adams' Equity, 229; Freeman on Cotenancy, 497; Sedgwick and Wait on Trial of Title to Lands; Brown v. Cranberry Co., 40 F. 849; Florence v. Hopkins, 46 N.Y. 182; Sullivan v. Sullivan, 66 N.Y. 42; Hipp v. Babin, 19 How. 279; Brock v. Eastman, 27 Vt. 660; Burhans v. Burhans, 2 Barb. 407; Rozuer v. Johnson, 35 Mo. 326; Hoffman v. Bard, 22 Mich. 59; Coleman's Case, 62 Pa. St. 252.) The interest of the wife in community property is a mere expectancy, like the interest which an heir may possess in the property of his ancestor, and has none of the attributes of an estate either at law or at equity. (Ballinger on Community Property, pp. 5, 77, 224, also secs. 230, 234, and notes; Platt on Property Rights of Married Women, 122; Van Maren v. Johnson, 15 Cal. 312; De Godey v. De Godey, 39 Cal. 164; Greiner v. Greiner, 58 Cal. 119; Guile v. Lawrence, 2 La. Ann. 226; Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. Rep. 170, 48 P. 228.) But it may be contended that Dr. Stephens held the land in question as trustee for the plaintiffs. If he did so hold an undivided one-half interest therein as such trustee, then the matter was in the nature of a resulting trust, and an innocent bona fide purchaser for value would take the property free of the trust. (Ord v. La Guenor, 18 Cal. 74; Bayles v. Baxter, 22 Cal. 575; Hidden v. Jordan, 21 Cal. 92; Millard v. Hathaway, 27 Cal. 119; Currey v. Allen, 34 Cal. 254; Riley v. Martinelli, 97 Cal. 575, 33 Am. St. Rep. 209, 32 P. 579; Montgomery v. Noyes, 73 Tex. 203, 11 S.W. 138; Mayes v. Manning, 73 Tex. 43, 11 S.W. 136.) The plaintiffs failed in their proof in a very important particular by failing to show that the property in question was not sold to pay community debts. This we contend was necessary to be shown by them and for that reason alone, if for no other-the motion for nonsuit was properly sustained. (Cook v. Norman, 50 Cal. 633; Burleson v. Burleson, 28 Tex. 416, 418.) The husband is entitled to represent the community in the settlement of its affairs, and possesses the authority to enable him to do so, and has the right, of course, to the possession and control of the community property and the power to make any disposition of it required for the purpose of settlement. ( Packard v. Arrellanes, 17 Cal. 540; Primm v. Barton, 18 Tex. 206; Jones v. Jones, 15 Tex. 143; In re McClean, 12 La. Ann. 222; Carter v. Conner, 60 Tex. 52; Jerfens v. Schnele, 61 Tex. 255.)
The plaintiffs (appellants here) brought their suit in the court below for a partition of certain lands described in the complaint, and in which they claim to be part owners, and tenants in common with certain of the defendants, The facts of the case, as they appear in the record, are substantially as follows: John L. Stephens, in 1867, married the mother of plaintiffs, who is known in the record only as "Cordelia B. Stephens." During coverture of said John L. and Cordelia B. Stephens, they acquired the lands described in the complaint, as community property--the title being conveyed to said John L. Stephens, who held the paper record title to said lands--some of which was acquired in October, 1871, and the other portion in March, 1873. Cordelia B. Stephens died in November, 1877, leaving, surviving her her said husband; John L. Stephens, and four children, the plaintiffs, Nina L. Stephens (now Von Rosenberg), born in February, 1872; Leland L. Stephens, born in February, 1870; Thaddeus D. Stephens, born January 11, 1874; and Mary Stephens, born in May, 1876, Afterward, but at what date does not appear, said John L. Stephens was married to Ida Story. In July, 1887, said John L. Stephens and his then wife, Ida Story Stephens, by deed duly made, acknowledged, and recorded, conveyed said lands to Milton Kelly for the consideration of $ 7,450. Milton Kelly held said lands during his life, and died in April, 1891, leaving surviving him the following named children, his only heirs at law, who are defendants herein, viz.: Katie A. Perrault, Ellen L. Bush, Anna D. Call, and Homer Kelly. It does not appear whether said John L. Stephens is dead or living. There is no allegation in the complaint, or proof in the record, showing whether Milton Kelly knew that said John L. Stephens was ever married to said Cordelia B. Stephens or not, or that he knew that the said lands were acquired during their coverture, or that he knew that they left any children. The defendant Jonas W. Brown was duly appointed...
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