Alferitz v. Arrivillaga

COOPER, C.

Action to quiet title. At the close of plaintiffs’ testimony the court, on motion of respondent, granted a nonsuit. Judgment was accordingly entered for respondent. This appeal is from the judgment for the purpose of reviewing the order granting the nonsuit. The complaint sought to have plaintiffs’ title, as executors, quieted to the lands therein described consisting of several thousand acres. The answer of respondent disclaimed any interest or claim to any portion of the land described in the eomplamt, except three hundred and twenty acres, which respondent alleged belonged to him in fee simple. The controversy is as to this three hundred and twenty acres. Martin Arrivillaga and Francisca Arrivillaga were at all times set forth in the pleading husband and wife. The plaintiffs claim title through a sheriff’s deed upon foreclosure proceedings, to foreclose a mortgage executed by the husband to plaintiffs’ testate upon all the lands described in the complaint.

The respondent claims title to the three hundred and twenty acres by virtue of a deed executed and delivered to him for a valuable consideration by the wife. The record title to the three hundred and twenty acres was never in the husband, and no such claim is made; but appellants claim that it was community property and passed by the mortgage and the subsequent foreclosure proceedings to the deceased. The wife’s title came through two deeds for one hundred and sixty acres each; the first being made July 9, 1891, by Lulu Ashcroft; the second being made August 15, 1891, by Francisca Sanchez. These deeds were both ordinary grant, bargain, and sale deeds, and each recited a consideration of ten dollars. Section 164 of the Civil Code, which was in force at the time these deeds were made to the wife, provides that “Whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property.” A presumption is a deduction which the law expressly directs to be made from certain facts, and unless controverted the finding must be according to the presumption. (Code Civ. Proc., secs. 1959,

[648]

1961.) The deeds were made to the wife long before the husband executed the mortgage to the deceased. By reason of the deeds the wife became presumptively the owner of the lands therein described as her separate property. It was therefore incumbent on plaintiffs to overthrow this presumption by sufficient and proper evidence. The burden was upon plaintiffs to show by sufficient evidence that the lands so conveyed to the wife were community property. This evidence must have been sufficient to justify the court in finding as a fact that the lands were community property. The trial court after hearing the evidence concluded that it was insufficient and granted the nonsuit.