Weymouth v. Sawtelle

• Decision Date: 19 February 1896
• Citation: 44 P. 109,14 Wash. 32
• Parties: WEYMOUTH v. SAWTELLE ET AL.
• Court: Washington Supreme Court

44 P. 109

14 Wash. 32

WEYMOUTH v. SAWTELLE ET AL.

Supreme Court of Washington

February 19, 1896

Appeal from superior court, Clallam county; James G. McClinton Judge.

Action by Margaret E. Weymouth against Marcus A. Sawtelle, receiver of the Port Townsend National Bank, and S. G. Morse, sheriff of Clallam county, to enjoin an execution sale of certain land. From a judgment for plaintiff, defendants appeal. Affirmed.

Warren Carroll and J. C. Phillips, for appellants.

Morris B. Sachs and George H. Jones, for respondent.

GORDON J.

On the 2d day of June, 1893, the appellant Marcus A. Sawtelle receiver, etc., recovered a judgment in the superior court of Jefferson county against one Andrew Weymouth (respondent's husband) on a community debt. Thereafter execution was issued, and a levy made on certain real estate the legal title to which was in the name of the respondent. Thereupon respondent brought this action to restrain the appellants from selling said real estate, alleging the same to be her sole and separate property. From a decree entered upon findings of the lower court in favor of respondent the case is brought to this court upon appeal. The court below found as a fact that "on or about the 20th day of April 1891, the plaintiff [respondent] acquired said property by purchase *** with her separate funds, and the consideration mentioned in the deed *** conveying the aforesaid described property, to wit, $2,400, was the separate funds and money and separate property of the plaintiff [respondent], *** and was the only consideration paid for said property." It appears from the evidence, and the court found as a fact, that at the time of the purchase, and for many years prior thereto, the respondent and the said Andrew Weymouth were husband and wife, and, in the absence of any testimony, the presumption would be that said property, having been acquired during the existence of the marital relation, was community property; but this presumption, under our law, is a disputable, and not a conclusive, presumption. As was said by this court in Yesler v. Hochstettler, 4 Wash. 350, 30 P. 398: "But the assertion of an exception merely requires the production of proof either that the conveyance was in fact a lawful gift, or that the consideration was furnished by husband or wife individually out of funds or property which he or she was entitled, under the law, to hold as separate property. Whatever...