Duncan v. Duncan (1907) · DecisionDepot

Duncan v. Duncan

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Sep 10, 1907 No. Civ. No. 364.Published

Before: Hall

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Holding. The court held that a wife cannot maintain an action in claim and delivery to recover community property acquired prior to the 1901 amendment of Civil Code section 172, and that any claim based on a fraudulent transfer must be specifically pleaded.

Issues

Whether a wife may maintain an action in claim and delivery to recover community property sold by her husband without her consent.
Whether the 1901 amendment to Civil Code section 172 applies to community property acquired before its enactment.
Whether a claim of fraudulent transfer of community property can be maintained in a standard claim and delivery action without pleading fraud.

Disposition. reversed

Quotations verified verbatim against the opinion

“The amendment of 1901 to section 172, Civil Code, has no application to community property acquired before the enactment of such amendment.”

“Whenever a right of action or a defense of an affirmative nature depends upon fraud it must be pleaded.”

Synopsis

APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion for new trial. John Hunt, Judge.

The facts are stated in the opinion of the court.

HALL, J.

Plaintiff brought this action in the ordinary form of an action in claim and delivery to recover of defendant the possession of certain goods and chattels, or the value thereof, if possession could not be had, and damages for the detention thereof. The goods are alleged in the complaint to be of the value of $1,000 and are set forth in detail. They

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consist of household furniture, furnishings and fittings of a dwelling-house, the enumeration of which occupies about fourteen folios of closely printed matter in the transcript. The answer consists of a denial of the material allegations of the complaint.

The trial was before a jury, and resulted in a verdict for the return of the entire property sued for, and if a return thereof be not made, for the sum of $1,000, the value thereof. Judgment was entered in accordance with the verdict. The case is before this court upon defendant’s appeal from an order denying his motion for a new trial.

The plaintiff is the wife of B. B. Duncan, to whom she was married in 1887, but at the time this action was brought she was living separate and apart from him. There is a conflict in the evidence as to whether she had deserted him or he her. On the seventh day of June, B. B. Duncan, the husband of plaintiff, without her consent or knowledge, sold to his brother, W. C. Duncan, the defendant herein, for the sum of $500, the property sued for, and delivered the same into the possession of defendant, and two days later departed from the state.

The evidence shows without conflict that some portion at least of the property sued for was separate property of plaintiff, the same having been given her. As to another portion, there is testimony given by plaintiff that it was purchased and paid for by B. B. Duncan prior to their marriage, but given to her by him.

As to another and a considerable portion of the property the evidence shows without dispute that it was community property, purchased after the marriage of plaintiff and B. B. Duncan but prior to the amendment to section 172, Civil Code of 1901, providing that “No sale, conveyance or incumbrance of the furniture, furnishings and fittings of the home, or of the clothing and wearing apparel of the wife or minor children, which is community property, shall be made without the written consent of the wife.”

Duncan v. Duncan

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Synopsis

HALL, J.

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