Taylor v. OpperMar

Belcher, C. C.— The facts involved in this case are as follows: In February, 1858, the then owner of certain real property in the city of San Francisco conveyed the same to Patrick Fay and Anne Fay, his wife, for the expressed consideration of $1,250. In January, 1864, the husband executed to the wife a quitclaim deed of the same property, and the deed contained this clause: “To have and to hold to her sole use, all and singular, the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, her heirs and assigns, forever.” The consideration expressed in the deed, and acknowledged to have been received by the party of the first part from the party of the second part, was five hundred dollars. The parties [469]lived together on the premises from the time of their purchase, in 1858, until December, 1870, when the wife, Anne Fay, died intestate, leaving her surviving her husband and four children, of whom the plaintiff, Emily Taylor, then five years of age, was one. Five months later, in May, 1871, Patrick Fay conveyed the premises to Christian Opperman by a grant, bargain, and sale deed, which expressed a consideration of two thousand two hundred dollars. There was never any administration upon the estate of Anne Fay.

In September, 1885, the plaintiffs, .Emily Taylor and her husband, commenced this action against Christian Opperman, who has since died, to recover an undivided one-sixth part of the property, with rents and profits. The complaint alleged that the said Emily acquired title to the demanded interest by descent from her mother, and was the owner and entitled to the possession thereof. The answer denied her ownership, and set up the statute of limitations. The court gave judgment according to the prayer of the complaint, from which and from an order denying a new trial the defendant has appealed.

No point is made for appellant on the statute of limitations, and it seems, therefore, to be conceded, as we think it must be, that the court properly found that the action was not barred.

It is claimed, and this is the only point made, that, under our laws, all property conveyed to husband or wife after their marriage is presumed to be community property, and that this is so whether the property be conveyed by one of the spouses to the other, or by a third party to one or both of them. And it is said that the property in question, on being conveyed to Patrick and Anne Fay, in 1858, became their community property, and that the subsequent deed from him to her, in the absence .of proof that it was intended as a gift, or that the consideration therefor was paid by her out of money belonging to her separate estate, did not change the character