Harrison v. Brown

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

The bill in this case was filed to subject a lot in San Francisco to sale, for the payment of a note and mortgage made by Mrs. Brown. Brown, in 1853, went off and left his wife to take care of herself. Before going, he made a deed of bargain and sale of this lot to his wife. The bill alleges, that “ immediately thereupon, the said Catharine Brown entered into the possession, use and occupation of the premises, and has ever since remained in the quiet enjoyment thereof, as her separate property, and without any interference of her said husband.” On the twenty-first of April, 1853, Catharine Brown mortgaged this property to one Henshaw, for $1,000, with interest, etc. This principal sum was spent in improving the property. Henshaw assigned this note and mortgage to Alexander J. Forbes, and he to the female plaintiff. In 1855, Mrs. Brown made a new note and mortgage, for a balance due on the old note to the plaintiff. Brown did not answer. The wife answered, denying her separation from her husband, as charged in the bill.

The deed of Brown to his wife is not set out, so that we cannot know whether any terms of it go to create a separate estate in the wife. We presume, however, that it is in the common form of a deed of bargain and sale.

The bill evidently proceeds upon the idea, that the husband had no interest in the property; but that the title vested in the wife, as her separate property by the deed; and the attempt is made to subject the property as that of the wife, by the act of the wife, and for her debt— with which debt the husband is not charged to have anything to do, or to be in any way bound to pay it.

[290]The default of the husband, therefore, becomes unimportant, for no averments are made against him, making him or his property liable.

To make out plaintiff’s case, therefore, something must be shown to bind the wife, or to subject this property as hers, or as bound by her acts.

If this property were, after this deed, common property, as it was before, or the separate property of the husband—of which we are not advised—still, nothing appears by this bill to entitle the plaintiff to the relief which he seeks.

If we take the plaintiff’s theory for true, that the property became by the deed the separate property of the wife, then the deed of mortgage must have been so executed as to bind it. But the statutes of the State prescribe the mode of charging such separate estate—at least, if acquired after the acts were passed; and we do not see that these acts, when operating in futuro, are not constitutional. These acts require, that the husband shall unite in the conveyance; and this is an indispensable condition, as we more than intimated in the case of Morrison v. Wilson.