Dimmick v. Dimmick
Before: Garoutte
Synopsis
Husband and Wife — Community Property — Purchase after Marriage — Presumption — Burden of Proof. —Real estate acquired by purchase during coverture is presumed to be community property, no matter whether the deed be taken in the name of the husband or wife, or both. While this presumption is not conclusive, the burden of proof rests upon the party affirming the fact to be to the contrary, and such fact must be established by clear and convincing evidence.
Id. — Separate Property —Necessity of Identification — Commingling of Funds. — In order that property may maintain its status as separate property, it is not necessary that it should be preserved in specie or in kind; yet when it has undergone mutations and assumed other conditions, it is absolutely necessary, in order to maintain its character as separate property, that it be clearly traced and located; and where money belonging to the wife has been so commingled with the funds of her husband, who is an active business man engaged in numerous speculations, so that it is impossible to say that any part of it passed into a particular tract of land purchased by the husband, such tract is community property.
Id.—Delivery oe Deed — Intent — Recording — Death oe Grantee— Sufficiency of Delivery. — Where a deed of realty was delivered to the grantee, with the intention of vesting the title thereto in the grantee, the fact that the grantor requested the grantee to refrain from recording the instrument until after the grantor’s death is entirely im. material; and the grantor’s belief, that if the grantee died before the grantor that he could conceal or destroy the deed and thereby reinvest the title in himself, does not militate against the sufficiency of the delivery at the date of the conveyance, or destroy his clear intention to part with the title and vest the same in the grantee.
Garoutte, J. This is an equitable action to cancel and set aside a deed of certain realty, executed by Elmer D. Dimmick to the defendant, and asking that said property be decreed to bé the property of the estate of Julia A. Dimmick, deceased. Said Julia was the first wife of Elmer D. Dimmick,. and it is contended by plaintiff that at the time this property was conveyed to defendant it was the property of the estate of said deceased wife Julia, by virtue of its being her separate property at the date of her death. It is further contended that the deed to the defendant was never delivered, and hence no title passed to her. Judgment went for the defendant, and this appeal is prosecuted from that judgment, and the order denying a motion for a new trial.
The deed sought to be set aside is a deed of gift made to the defendant Sarah Smith Dimmick, the second wife of Elmer D. Dimmick, and dated February 2, 1889. The finding of the court, that the realty described in this deed was not the separate property of Julia A. Dim-mick, deceased, is fully supported by the evidence. It appears that she and Elmer D. Dimmick were married in Pennsylvania, nearly fifty years ago. That subsequently he received a gift of a small tract of land from his father,-and that later she received some money from the estate of her father. He also obtained a loan of the sum of $1,360 from his father-in-law, which he invested in land. This indebtedness was afterwards canceled, [327]upon the understanding that it should be deemed as an advancement to them from her father’s estate. It is not necessary to an affirmance of the judgment in this case that we examine in detail the status of the real estate purchased by the husband with the above-mentioned funds, although it would seem that the wife’s separate estate would consist of the indebtedness due to her father from the husband rather than the real estate previously purchased with the funds which created the indebtedness.
As described by one of the witnesses, the husband was an “ industrious, thrifty, economical, and intelligent farmer and blacksmith.” He also traded in real estate, and whatever money his wife received by inheritance, or otherwise, passed into the common fund, and its identity forever lost in the purchase of numerous tracts of real estate, the titles to which were all taken in his name. It is unnecessary to follow in detail the migrations of these parties to Iowa, and from thence to California; it appears that the husband always had the complete and entire control and conduct of the property, selling and buying where and when he chose. While the evidence discloses that the proceeds of the realty owned in Pennsylvania were brought to Iowa, there is no evidence that any money was brought by them to California. It further appears that they made a deed of gift of quite a valuable tract of land to a son, and that the husband was the recipient of a gift of fifteen hundred dollars from his brother. In addition to all these facts, there is no evidence whatever as to the source of the particular funds which paid for the land involved in this litigation.
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