Wilkerson v. Aven

• Decision Date: 03 December 1914
• Parties: W. R. WILKERSON, as Trustee in Bankruptcy, Respondent, v. MYRTLE F. AVEN, Appellant
• Court: Idaho Supreme Court

144 P. 1105

26 Idaho 559

W. R. WILKERSON, as Trustee in Bankruptcy, Respondent, v. MYRTLE F. AVEN, Appellant

Supreme Court of Idaho

December 3, 1914

COMMUNITY PROPERTY-TRUSTEE IN BANKRUPTCY-ACTION TO QUIET TITLE-STATUTORY CONSTRUCTION.

1. Held, under the facts of this case that the land involved is the separate property of the wife and not subject to the payment of the husband's indebtedness.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. J. M. Stevens, Presiding Judge.

Action to quiet title in a trustee in bankruptcy to real estate standing in the wife's name. Judgment for trustee. Reversed.

Judgment reversed, with directions. Costs awarded in favor of appellant.

Griffiths & Griffiths and Thomas D. Griffin, for Appellant.

The fact that the husband managed the investment for appellant does not constitute a presumption of community property. The husband could only hold this property in trust for his wife. (Title Ins. & Trust Co. v. Ingersoll, 153 Cal. 1, 94 P. 94; Stickney v. Stickney, 131 U.S. 227; 9 S.Ct 677, 33 L.Ed. 136; Denny v. Denny, 123 Ind. 240, 23 N.E. 519; Chadbourn v. Williams, 45 Minn. 294, 47 N.W. 812; Carter v. Becker, 69 Kan. 524, 77 P. 264; Jones v. Davenport, 44 N.J. Eq. 33, 13 A. 652.)

Upon the question of a wife's earnings constituting a part of her separate estate under an agreement with her husband, see Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 P 1088; Wren v. Wren, 100 Cal. 276, 38 Am. St. 287, 34 P. 775; Gage v. Gage, 78 Wash. 262, 138 P. 886.

The presumption that property acquired during marriage is community property may be rebutted. (Stewart v. Weiser Lumber Co., 21 Idaho 340, 121 P. 775; Heney v. Pesoli 109 Cal. 53, 41 P. 819.)

It is only by giving effect to sec. 2677, Rev. Codes, that sec. 2680, which defines community property, and sec. 4479, which exempts the rents, issues and profits of the wife's separate property and her personal earnings from execution against her husband, can be reconciled. (Thorn v. Anderson, 7 Idaho 421, 63 P. 592; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66.)

Jackson & Walters, for Respondent Wilkerson.

Where separate property has by investment or otherwise, undergone changes or mutations, as in the case at bar, it is indispensable in order to maintain its separate character that the wife shall trace and identify it, and rebut the presumption that the property acquired during marriage belongs to the community. (Hamilton Brown Shoe Co. v. Lastinger (Tex. Civ. App.), 26 S.W. 924; Morris v. Hastings, 70 Tex. 26, 8 Am. St. 570, 7 S.W. 649; Brown v. Lockhart, 12 N. M. 10, 71 P. 1086; Yesler v. Hochstettler, 4 Wash. 349, 30 P. 398, and cases cited.)

At the time of the purchase of the property involved in this action appellant was a married woman living with her husband, thus raising the presumption that the property so acquired was community property, and placing the burden on the appellant to establish the contrary. (Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66; In re Niccolls Estate, 164 Cal. 368, 129 P. 278.)

SULLIVAN, C. J. Truitt, J., concurs.

OPINION

SULLIVAN, C. J.

This action was brought by the plaintiff as trustee of the estate of H. B. Aven, a bankrupt, to quiet title to a tract of land consisting of about eleven acres in Orchard Heights Addition to the town of Caldwell, Canyon county. The cause was tried by the court without a jury and findings of fact, conclusions of law and judgment entered in favor of the plaintiff, quieting the title in him as trustee. The appeal is from the judgment.

The principal assignment of error is that the evidence is not sufficient to support findings Nos. 3, 5, 6 and 7.

The evidence shows that the appellant, Myrtle F. Aven, was the wife of the bankrupt H. B. Aven; that they were married in the year 1893; that they lived on a homestead in Deer Flat not far from the town of Caldwell for a period of about nine years, beginning in 1894; that shortly after their marriage the appellant's father gave her $ 100 in cash which she invested in one cow with a suckling calf, a heifer, three brood sows and a dozen chickens, which were taken to and kept on said homestead; that during that time the husband managed, controlled and cared for said livestock and its increase, selling a part of it at times and accounting to the appellant; that the husband retained the money from the sale of the stock so sold and used the same in the operation of said farm; that after leaving the ranch in about 1903, they took some of the stock with them to Caldwell and kept it there and finally sold the last of it in 1907, some three or four years after they had left the ranch; that after the last of it was sold, a settlement was had between the husband and wife and the amount due appellant was agreed upon; that both husband and wife testified that there was a settlement between them about 1907, and according to their best recollection it was agreed that there was between twelve and thirteen hundred dollars due appellant; that they kept a book part of the time of the amount received from the sales of such property and what it cost to feed the stock; that the cost of the feed was deducted from the price the cattle, hogs, etc., brought; that no other cattle, hogs or chickens were kept on the homestead but those purchased with said $ 100 and their increase; that the husband began to repay the appellant in small sums; that there was an agreement between them that the appellant should have as her separate property her personal earnings which she might derive from keeping roomers and a part of what she might derive from keeping boarders. and the sums for which said property sold, less the cost of the feed they consumed.

The evidence shows that appellant opened a savings account with the Caldwell Banking & Trust Company, the predecessor in interest of the Caldwell Commercial Bank, on July 24, 1907, and at the time she purchased the land in question, viz., December 27, 1909, she had in that savings account $ 726.94; that the purchase price of said land was about $ 1650 and in order to make a cash payment of $ 1000 at the time she purchased the land, she borrowed $ 250 from the bank on her note and her husband paid her $ 50 on the debt he owed her, the appellant later paying the note of $ 250 to the bank from her savings, and she thereafter mortgaged the land for $ 650, from the proceeds of which loan she paid the balance of the purchase price. It appears that her said husband signed said mortgage with her. About the time, or shortly after, of removing from the ranch to the town of Caldwell, the husband entered into some kind of merchandising and was engaged in that business up to the 30th day of January, 1912, when he was adjudged to be a bankrupt under the bankrupt laws of the United States. From the time plaintiff's said husband entered into the mercantile business until he was declared a bankrupt, his indebtedness to the bank varied from four to about eight thousand dollars. The cashier of the bank was one of the parties who made the sale of this land to the appellant and knew all about her husband's indebtedness to the bank and her savings...