Smith v. Smith

California Supreme Court Jan 15, 1859Published

Before: Field

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Holding. The court held that property acquired during marriage is presumed to be common property, and a husband cannot use common funds to construct a building on separate property for the purpose of defeating his wife's interest in that common property.

Issues

Whether property acquired during marriage is presumed to be common property.
Whether a husband may use common property to construct a building on separate property to defeat the wife's interest.
Whether the wife is entitled to a share of the value of a building constructed with common funds on the husband's separate property.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the presumption of the law is, that all property belongs to the community, which can be repelled only by clear and decisive proof”

“the law, notwithstanding its broad terms, will not support a voluntary disposition of the common property, or any portion of it, with the view of defeating any claims of the wife.”

“the plaintiff, upon the dissolution of the community, was entitled to one-half of the building erected out of the funds of the common property”

Synopsis

Appeal from the Sixth-District, County of Sacramento.

This was an action brought by the plaintiff, Augusta J. Smith, against the defendant, Frederick C. Smith, for a divorce from the bands of matrimony between the said parties, and a division of the common property.

The plaintiff asked for the dissolution of the marriage contract on the ground of the commission of adultery by the defendant, after his marriage with her. This charge was denied by the answer. The case was tried in the Court below without a jury, and a decree of divorce granted. The question of the separate and common property of the parties was referred to P. L. Edwards, a referee appointed by the Court, to take testimony, find the facts, and report a judgment to the Court.

The parties were married on the fourth day of May, 1852.

In respect to the property of the parties, the complaint charges:

1st. That prior to and at the time of her marriage with defendant, Frederick C. Smith, she was the owner and in possession of lots numbers two and five in the square between M and N and Eighth and Ninth streets, in the City of Sacramento. That these lots were her separate property.

2nd. That defendant, Frederick C., on the-day of June, 1853, sold lot number two, with her consent, and received therefor, to his own use, $1,050.

3rd. That defendant, Frederick C., in 1854 used a portion of this money, together with certain other moneys, the common property of the parties, in the purchase of lots numbers six and seven, adjoining the lots of plaintiff and in the same square. That this last purchase was intended for his own benefit, but the conveyance was taken in the name of the defendants, Alfonzo B. and George Y. Smith, both minor children of the defendant Frederick C. by a former marriage.

4th. That afterwards, in the month of July, 1854, the defendant, Frederick 0., with the balance of the purchase money of lot number two, and with other moneys acquired by him since their marriage— which is charged to be common property—erected upon said lot number six a brick building at a cost of $4,500, which building is claimed as the common property of plaintiff and Frederick C.

5th. The minor defendants, Alfonzo B. and George Y., possessed no means, either in their own name or that of others, and the conveyance to them was, and is, a fraud upon the plaintiff’s rights.

6th. That after the erection of the said brick building, the plaintiff and defendant Frederick C. occupied said building as a homestead, until about the 18th of November, 1856, when the said Frederick O. fraudulently induced plaintiff to vacate same, and that he is now trying to dispose of the same for the purpose of defrauding her.

Field, J., delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.

It is clear that the two lots in question were purchased by the husband with funds owned by him previous to his marriage with the plaintiff. This he expressly states in his examination, and there is nothing disclosed by the record which contradicts his testimony. In this separate property of his, the plaintiff possessed no interest which the law could protect so as to restrain his power of absolute disposition, whether by sale or gift. The purchase of the lots and taking the conveyance in the name of his children by a previous marriage, was not in fraud of any rights of the plaintiff. She had no claim upon the funds thus applied. They were ¡the husband’s previous to the marriage, and no interest passed to the wife by that event. The gift to the children was an advancement for their benefit, and was not forbidden by the letter or policy of the law.

But as to the building upon the lots, the case is different. The building was erected long after their purchase, and with funds which constituted common property. It is true, the evidence of the husband tends to show that a portion of the funds thus used were his separate property, but its general effect, when considered in connection with [224]his repeated declarations to different parties, is insufficient to overcome the presumption arising from the fact of the construction being made during the existence of the community.

The law of this State in relation to the rights of husband and wife, as to the common property, is similar to the law of Louisiana and Texas ; and in those States it is held, by their highest tribunals, that all property acquired, by either spouse, during the existence of the community, is presumed to belong to it, and that this presumption can only be overcome by clear and satisfactory proof that it was acquired by the separate funds of one or the other; and that the burden of proof lies upon the party claiming the property as separate. Lott v. Leach, 5 Texas, 394; Houston v. Civil, 8 Texas, 242 ; Gilliard v. Chesney, 13 Texas, 337; Chapman v. Allen, 15 Texas, 278; Claiborne v. Tanner, 18 Texas, 69; Ford v. Ford, 1 Louisiana, 207; Dominguez v. Lee, 17 Louisiana, 290 ; Smalley v. Lawrence, 9 Rob. 214; Fisher v. Gordy, 2 La. Ann. 763 ; Webb v. Peck, 7 Ann. 92.

In a case decided at the present term, (Meyer v. Kinzer and wife) we have had occasion to consider whether the possession of property by either spouse during the existence of the community, acquired by purchase, created a presumption that the property was common; and we arrived at a conclusion similar to that of the Louisiana and Texas cases, that the presumption of the law is, that all property belongs to the community, which can be repelled only by clear and decisive proof that it was either owned before maraiage, or subsequently acquired in one of the particular ways designated in the statute; that is, by gift, bequest, devise or descent, or was taken in exchange for, or in the investment, or as the price of such property, so originally owned or acquired; and that the proof rests upon the party asserting the right.

Smith v. Smith

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