Tibbetts v. Fore

Foote, C. The wife of one Tibbetts brought an action against Gill as sheriff of San Bernardino County, California, and others, which had for its object to en-' join a sale under execution (issuing by virtue of a judgment against her husband) of a certain house and lot in the town of Calico, claimed by her as her separate property.

The cause was tried by the court, and judgment rendered in favor of the defendants; from that, and an order denying her a new trial, the plaintiff appealed.

The record contains only the judgment roll. From the findings, it is disclosed that the plaintiff purchased the land threatened to be sold for one hundred dollars, which was her own money and separate property; that she thereupon immediately entered into possession of it,- and with other money, also her separate property, erected a building thereon; that at the time of the purchase of the lot she was, and has ever since been, the wife of R. G. Tibbetts, the defendant in the execution, and that he never had any interest in the land or building thereon; that before the bringing of the present action, the assignee of the plaintiff in the execution, which was issued upon a judgment rendered against the said R. G. Tibbetts, caused that execution to be levied' by Gill, as sheriff, upon the plaintiff’s said property as [244]that of R. G-. Tibbetts, her husband, and said sheriff was at the time of the institution of this action threatening and about to sell it as belonging to said R. Gr. Tibbetts; that the plaintiff’s title and that of her grantors and predecessors was a possessory claim only to the land, the legal title of which was still in the United States of America; that the plaintiff had never resided upon the premises, and that at the time of the levy of the execution she had leased the house and lot to a person who occupied them as her tenant, and that her husband did not have possession thereof.

And as a conclusion of law therefrom, it is held by the trial court that the threatened sale of the premises by the sheriff will not cast a cloud on the plaintiff’s title.

The statutes with reference to community property “ proceed 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 con- ' tributing 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 ” by gift, devise, bequest, or descent, with' the rents, issues, and profits thereof.