Ewald v. Corbett

By the Court, Shafter, J.: Ejectment for lands in San Francisco, they being parcel of a larger tract known as the “ Harman Tract.” The appeal is from the judgment and order overruling the defendants’ motion for a new, trial. The only question raised is as to the plaintiffs’ title and right of entry.

The case shows, amongst other things, that “ Jacob Harman died actually seized and possessed of the demanded premises as community property, on the 3d day of November, 1850, leaving-him. surviving his wife Elenora -Harman, and two children, Mary Ann Harman, aged about seven years, and Jacob Harman, Jr., aged about four years.” That Harman left a will wherein he devised two thirds of his estate to his said son, and one third to his said daughter. That letters testamentary duly issued to his executors, Hayes and Corbett, on the 17th of December, 1850. That Mrs. Harman, on the 20th of November, 1850, seventeen days after her husband’s death, intermarried with one Michael Foley, and that she died intestate in the year i860, and that her said son, Jacob Harman, Jr., also died intestate during the same year, leaving neither wife nor descendants. The plaintiff, Ewald, claims the whole of the demanded premises through a [497]deed executed by Foley and wife to Brannan and others on ■the 27th of June, 1853 ; and the defendants claim under Mary Ann Harman as devisee of her father and sole heir at law of her mother and brother.

First—There is no' question that Mrs. Foley, at the time she joined with her husband in the deed to Brannan and others, was the owner of at least one half of the premises in her own right; but the plaintiff, Ewald, claims that she owned the whole in severalty by virtue of a deed executed to her by certain Commissioners as purchaser at a sale made by them in pursuance of a decree duly entered in the Court of First Instance, October 24th, 1849, divorcing Mrs. Harman from her then husband, and directing an equal division of the common property; which decree was thereafter supplemented by an order, passed March 12th, 1851, directing the decree to be executed by a sale of the property and division of the proceeds. The defendants dispute the validity of this deed, claiming that nothing passed by it to the purchaser. So far as this appeal is concerned, however, it is not necessary to determine whether Mrs. Foley, at the date of the deed of herself and husband to Brannan and others, owned the premises in severalty as against her children, as claimed by the plaintiff, or only an undivided half thereof, as claimed by the defendants; for the deed referred to was inoperative and void, inasmuch, as it was not acknowledged by Mrs. Foley in the manner prescribed by the Act defining the rights of husband and wife, passed on the 17th of April, 1850. Though the deed is void considered as a conveyance by the wife of her separate property, it is claimed that inasmuch as the deed of the Commissioners to Mrs. Foley purports to have been made upon a money consideration, the intendment must be, in the absence of all showing to the contrary, that the lot was paid for with money belonging to herself and her husband, Foley, in community; and that the lot is to be considered as the common property of Mr. and Mrs. Foley by consequence, and that the title therefore passed by the deed in