Morgan v. Lones

Hayne, C. Action to quiet title to certain lots in Nevada City. The court below gave judgment in favor of the plaintiffs as to a portion of the lots, and in favor of the defendant as to the remainder. The plaintiffs appeal from so much of the judgment as is in favor of the defendant.

The decision turns upon the question whether the lots as to which defendant obtained judgment were the community property of the defendant and his wife, Mary J. Lones, or her separate property. The facts are as follows: The marriage took place in 1861. At that time and up to the issuance of the United States patent to the city trustees in July, 1869, the land was public land. After the marriage the defendant entered into possession under deeds from prior occupants. In this condition of affairs a patent from the United States government to the board of trustees of the city was issued under the following provision of the act of Congress of 1867, viz.: “ Whenever any portion of the public lands have been or may be occupied as a town site, not subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, for the corporate authorites thereof, and if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land-office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests; the [60]execution of which trust as to the disposal of the lots in such town and the proceeds of the sale thereof to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.” (R. S., sec. 2387; 14 U. S. Stats, at Large, p. 541.)

The mode of acquiring the title from the corporate authorities was prescribed (at the time in question) by the state legislature by the act of March 24, 1868. (See Laws 1867-68, p. 487; Deering’s Pol. Code, p. 720.) Under its provisions the husband filed with the clerk of the board of city trustees an affidavit sworn to by himself, in which he stated, among other things, that his wife was “ the owner of the lot,” and that he, the affiant, was “ in possession of and entitled to the possession of the same against all other persons, to the best of affiant’s knowledge and belief, excepting Mrs. Mary- J. Lones, in whose name affiant wishes the deed to be made.” The affidavit as to each lot is substantially the same. The required payment is stated by the findings to have been made by the husband “ out of his own separate estate.” What the husband said in his evidence in regard to this was: “ I paid my own money for them.” But for the purposes of this appeal, it is immaterial whether the payment was made out of his separate property or out of the community property; as it is not contended that the property was the separate property of the husband. The deed from the city-trustees was made to the wife in December, 1870, and she died in 1887.