Shumway v. Leakey
Before: Searls
Synopsis
Mabbied Woman—Sepabate Pbopebtt—Bepbvin—Pleading In an-action by a married woman to recover personal property, she need not in her complaint allege the coverture, but when that fact appears on the trial, may show that tho property demanded is her separate property.
Id.—Evidence — Schedule.—In such an action, a schedule of the wife’s separate property filed and recorded under sections 105 and 166 of the Civil Code is admissible in evidence to prove her title.
Id.—Assessment Boll.—The assessment roll of the county showing that no separate property has been assessed to the wife, and that part of tho property described in tho complaint was assessed to the husband as his own, is inadmissible to prove property out of the wife and in her husband, unless it is shown that she gave in the property as that of her husband or had some knowledge that it was so assessed.
Id.—Laws of Anotheb State.—The tenure by which personal property acquired in another State and brought into this is held, as between husband and wife, will depend upon the laws of the State where it was acquired; but these laws are to bo proved like any other fact, and in the absence of all evidence will be presumed to be the same as the laws of this State.
Searls, C. The plaintiff, a married woman, brought this action to recover as her separate property, certain personal property from the defendant, who as sheriff of the county of Lassen had levied upon and taken the same under a writ of attachment against plaintiff’s husband, and as the property of the latter. Plaintiff had verdict and judgment. Defendant appeals.
It was not necessary for plaintiff to aver coverture in her complaint, and when that fact appeared at the trial, it was competent for her to show that the demanded property came to her as a gift, and was her separate property.
Had her complaint shown her to be a married woman, it would have been incumbent upon her to state such other facts as were necessary to entitle her as such to maintain the action. (Thomas v. Desmond, 63 Cal. 426.)
[459]In Peters v. Fowler, 41 Barb. 467, it was held that in that State (New York), “the fact of coverture has ceased to have any relation to the technical right of maintaining an action by a married woman in respect to her separate property, and the allegation of coverture iu the complaint is no longer necessary.”
The schedule of plaintiff’s separate property recorded in the office of the county recorder, November 13, 1877, was properly admitted in evidence.
The Civil Code, sections 165 and 166, provides for filing and recording the separate personal property of the wife, and “ the filing of the inventory in the recorder’s office is notice and prima facie evidence of the title of the wife.”
The cattle described in the schedule are of the same general kind as a portion of that seized by the sheriff, and whether in fact the identical property so seized, was a question to be determined by evidence aliunde.
Defendant offered in evidence the assessment roll of Lassen County for the years 1882-83, for the purpose of showing that no separate property had been assessed to plaintiff, and also to show that part of the property described in the complaint was assessed to B. F. Shumway, the husband of plaintiff, as his own property and not as the property of his wife, the plaintiff.
Plaintiff objected on the ground that such evidence was immaterial and incompetent.
The objection was sustained and the ruling is assigned as error.
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