Hamilton v. Hubbard

Upon a careful reconsideration of this case we are convinced that there is no substantial conflict in the evidence, and that there is nothing to support the findings of the superior court to the effect that the lot in controversy, upon its conveyance to Mrs. Hamilton, became community property. The Department opinion will therefore stand.

The point is made in the petition for rehearing that the plaintiff's demand is stale. This position cannot be sustained. The complaint, on its face, does not show a stale demand, and there is nothing in the findings or conclusions of the superior court to support such a defense.

The judgment and order appealed from are reversed.

The following is the opinion above referred to, which was rendered in Department Two, May 29, 1901: —

The plaintiff is the administrator of Frances Hamilton, his deceased wife, to whom he was married May 22, 1867, and who died March 29, 1887. He sues as administrator, to quiet the title of her estate to lot No. 3, block 56, etc., in the city of Stockton. Both parties deraign title under a deed from one Weber to Frances Hamilton, the deceased, of date July 6, 1867, purporting to convey to her the lot in question, — the plaintiff, as her administrator; the defendant, under foreclosure of mortgage made to her, August 26, 1892, by the plaintiff, in his personal capacity, and commissioner's deed executed to him in pursuance thereof.

The court found that the property in question was the community property of Moses Hamilton and his deceased wife. But this finding rests wholly upon the deed of Weber to the latter, — the acknowledged source of title of both parties. Hence the question presented is as to the effect of this deed. If the deceased Frances, as grantee therein, took the property conveyed as her separate property, the plaintiff, as her administrator, was entitled to recover; otherwise not.

Under our law as it stood prior to the amendment of section 164 of the Civil Code, March 19, 1889, the presumption was that all property acquired by either spouse during marriage was community property. (Meyer v. Kinzer, 12 Cal. 247;1 1 Notes on Cal. Rep. 547,548; Civ. Code, secs. 162, 163, 164.) Hence, assuming (without deciding) that the amendment *Page 605 of section 164, March 19, 1889, and the subsequent amendments of March 3, 1893, and of March 4, 1897, did not change the rule with reference to deeds made prior to the first amendment, the presumption, in the absence of evidence to the contrary, would be that Frances, the grantee in the deed in question, took the property for the community. But here there is a recital in the deed that it is made "in consideration of one dollar, andexchange for lot No. 13, in block Q west," etc.; and it appears from the evidence, without contradiction, that the lot mentioned — "No. 13" — was the separate property of Moses, the husband, owned by him before the marriage; and from a deed made by him twelve days after the deed to his wife — conveying to Weber lot No. 13, and reciting as the consideration "one dollar, andexchange for lot 13, in block 56," etc., — it further appears that the deed of Weber to Frances was made with his consent, and in pursuance of his agreement with the grantor. Thus far the nature of the transaction is apparent, and there is no room for presumption. We have therefore only to determine the legal effect of the facts thus established; and this under well-established and familiar principles of the law (assuming for the present that the result would not be affected by the peculiar laws of this state, affecting the marital relations), is sufficiently obvious.