Meyer v. Kinzer
Before: Eield
Synopsis
Appeal from the Twelfth District, County of San Francisco.
This was an action brought by the plaintiff against the defendants, Kinzer and wife, to extinguish a claim of title by the defendants to certain real estate in the City of San Francisco.
Kinzer, the husband, in his answer disclaimed all pretensions to title in himself. Rebecca, the wife, sets up title by a mortgage upon the premises, and asked that the same may be foreclosed for the benefit of her separate estate.
The facts are as follows:
On the sixth of December, 1851, the defendant, George W. Kinzer, who was then, and still is, the husband of the defendant Rebecca, purchased certain real estate in the city of San Francisco, and took the conveyance in his own name. On the first of October, 1858, Kinzer and wife sold the premises to James H. Gager, both joining in the deed, and on the same day, Gager executed and delivered to Kinzer and wife, a note and mortgage on the premises, to secure $14,000 of the purchase money. On the eighth day of April, 1854, George W. Kinzer, for a valuable consideration, assigned and transferred the note and mortgage to Adolphus H. Lemmen—the wife did not join in this assignment. On the twenty-fifth of September, 1855, Gager, the mortgagor, paid to Lemmen the amount of the mortgage, and took a discharge. On the sixteenth of July, 1856, Gager sold and conveyed the property to plaintiff. The defendant Rebecca sets up a claim to one-half of the mortgage debt, as her separate property.
The cause was tried in the Court below without a jury. Plaintiff had judgment, and the defendant Rebecca appealed to this Court.
Eield, J., delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.
The statute defining the rights of husband and wife, provides in its first section that “ all property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise or descent, shall be her separate property; and all property, both real and personal-, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise or descent, shall be his separate property ;” and, in the second section, that “ all property acquired after marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property;” and, by the ninth section, the husband is invested with the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate.
These provisions of the statute are borrowed from the Spanish law, and there is hardly any analogy between them and the doctrines of the common law in respect to the rights of property consequent upon marriage. The statute proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other. To the community all acquisitions by either, whether made jointly or separately, belong. No form of transfer or mere intent of parties can overcome this positive rule of law. All property is common property, except that owned previous to marriage or subsequently acquired in a [252]particular way. The presumption, therefore, attending the possession of property by either, is that it belongs to the community; exceptions to the rule must be proved.
The purchase of the premises in question was made by Kinzer in 1851, after his marriage with Rebecca, and the presumption follows, as we have observed, that the property belonged to the community. If the purchase was made with the separate funds of either, that fact should have been affirmatively established by clear and decisive proof. In the absence of such proof the presumption was absolute and conclusive, and it made no difference whether the conveyance was taken in the name of one or the other, or in the names of both. This results, as we have said, from the language of the statute—“All property acquired after marriage by either, etc., shall be common property.” The fact of purchase excludes the supposition of acquisition by gift, bequest, devise or descent.
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