Higgins v. Higgins

By the Court, Crockett, J.: It appears from the finding that the demanded premises were purchased by the defendant Solomon Higgins from Pioche for nine hundred dollars, during the lifetime of Hulda, the wife of said Higgins; that the purchase money was paid out of the common property of said marriage; that at the request of the husband, and by way of gift from him, and with the intention on his part that the same should become her separate estate, the property was conveyed by Pioche directly to the wife by a deed of bargain and sale reciting a consideration of nine hundred dollars; that the wife after-wards died intestate during the lifetime of the husband, leaving the plaintiffs as her heirs at law ; that the husband subsequently intermarried with the defendant Ann Higgins ; that thereafter, whilst residing on the premises with her husband, the said Ann duly filed and recorded a declaration claiming said premises as a homestead; after which her husband, Solomon Higgins, by a deed reciting love and affection as the consideration, conveyed the premises to one of the [263]plaintiffs; and that ever since the filing of the declaration of homestead the defendant, Ann Higgins, has resided upon, claimed, and used said premises as a homestead. On these facts the Court entered a judgment for the defendants, on the ground: First—“That the plaintiffs as heirs at law of their deceased mother did not acquire by descent a right of entry on the demanded premises. If any right to said premises exists in them as such heirs, it is an equitable right which cannot be enforced in this action. Second—That they did not acquire a right of entry on said premises as grantees of their father, because their father could not legally convey it to them during the existence of the homestead upon it acquired by his second wife.” It is well settled in this Court that if a husband purchase an estate and pay for it out of the common property, and cause it to be conveyed to the wife by a deed of bargain and sale, with the intent that it shall become her separate estate, the transaction will operate and be upheld as a gift from the husband to the wife. (Peck v. Brummagim, 31 Cal. 440: Dow v. Gould & Curry S. M. Co., id. 653; Ingersoll v. Truebody, 40 id. 603; Woods v. Whitney, 42 id. 359.)

The doctrine of these cases is, that, prima facie, property conveyed to the wife by a deed of bargain and sale is common property, but that it is competent for the wife to show by extrinsic proofs the true character of the transaction, on establishing which the deed will be held to operate as a conveyance to her of a separate estate. It is held that such proof does not contradict or vary the written instrument, except in so far as it explains the consideration, which it is always competent to do, even in an action at law. (Rhine v. Ellen, 36 Cal. 362.) In Ramsdell v. Fuller, 28 Cal. 37, it was decided that it was not only competent for a wife claiming under a deed of this character to show that the purchase money was paid out of her separate estate, but that enough