Carter v. McQuade

Belcher, C. C. This is an action - to recover the possession or value of certain personal property. The plaintiff had judgment, and from that judgment, and an order denying a new trial, the defendant appeals.

The material facts of the case, as shown by the record, are as follows; In December, 1887, the plaintiff, Anna L. Carter, and Jacob E. Carter were husband and wife, and were residing on a tract of land in Tuolumne County. On the twenty-second day of that month they entered into a written agreement, by which he agreed to give her “a bill of sale and peaceful possession” of certain described personal property, and in consideration thereof she agreed to relinquish all claims against any property, real or personal, belonging to him, or which he might thereafter acquire, and also to relinquish all claims against him for the future support of herself and their children. It was then stipulated in the agreement “that the children now belonging to the family shall, at their own pleasure, visit either party to this instrument, and be welcome, and that either party to this instrument shall have the privilege to visit the children at any time or place they ¡nay be located, and no insinuations be offered by either party to the other to mar the pleasure of such visit.” In pursuance of this agreement, Carter executed and delivered to his wife a bill of sale of the property agreed upon, reciting therein that it was made for and in consideration of $512.10, “to me paid in hand by Mrs. Anna L. Carter,” and further reciting, after the [276]habendum clause: “And I do, for myself and legal representatives, agree with said party of the second part and her legal representative to warrant and defend the sale of the aforementioned property unto the said party of the second part and her legal representatives against all and every person whatever.”

Before malting the agreement and bill of sale, the parties had all of their personal property appraised and divided into supposed equal parts, and it was one of these parts that be transferred to her. Shortly after the papers were signed, Carter went away to Merced County, where he afterward made his home. He also took away his part of the property. Mrs. Carter remained at her old home in Tuolumne County, and kept there her live children and her part of the property. Carter occasionally went back to his old home. Several times he stopped overnight, and one night he slept with his wife. On March 6t-h he made to her a new bill of sale for thirty head of hogs, more or less.