Loring v. Stuart

Belcher, C. C. —Action to foreclose a mortgage. Defense that the defendant was a married woman when she executed the mortgage, and that the mortgaged property was community property, and the mortgage therefore void.

The court found that at the date of the mortgage, and for more than ten years prior thereto, defendant was the wife of one Robert Stuart, but that she and her husband had lived separate and apart from each other for nearly [201]two years, and that the mortgaged premises were the earnings of defendant while so living separate from her husband, and were her separate property. Judgment was entered foreclosing the mortgage, and from that judgment, and an order denying her anew trial, defendant appealed.

The only points made for a reversal are, that the court erred in not granting a nonsuit, and that the findings as to the defendant’s living separate from her husband, and as to the mortgaged property being the earnings of defendant while so living, were not justified by the evidence.

1. It does not appear from the record that any grounds for the nonsuit were stated, and for that reason the first point cannot be sustained. It has long been settled that when a motion is made for a nonsuit without stating the grounds upon which it is made, it is not error to overrule the motion. (Kiler v. Kimbal, 10 Cal. 267; People v. Banvard, 27 Cal. 470; Sanchez v. Neary, 41 Cal. 485.)

2. There was testimony tending to show that the defendant had been living separate from her husband for nearly five years when the case was tried. It appeared that the parties were living together in Rocklin, Placer County, in April, 1883; that in that month he went away to Forest City, in Sierra County, and had ever since resided there; that she continued to live in Rocklin, and had kept hoarders and done other work to support herself and children; that she had never visited him nor he her, though he had twice passed through Rocklin; that he had written several letters to her and the children, and had three or four times sent small sums of money to the children. He testified: “The immediate cause of my leaving Rocklin was domestic infelicity, and such infelicity has not been healed by reconciliation. I do not intend to resume intimate marital relations with my wife, but my intentions in that regard did not exist [202]