Jordan v. Fay
Before: Belcher
Synopsis
Estates of Deceased Persons—Title of Devisee. — The legal title to real estate devised by will passes to the devisee, subject only to the payment of the claims of creditors against the estate and the expenses of administration.
Id.—Quieting Title—Rights of Purchaser from Devisee. — A purchaser of land from the devisee of a decedent, who receives a conveyance of the title of such devisee before settlement or distribution of the estate, may maintain an action to quiet title to the devised premises, as against any one except the executor or administrator.
Id. —Presumption as to Unpaid Claims. —In such action, where it does not appear that there were any unpaid claims or expenses of the estate at the time of the conveyance from the devisee, it is to be presumed that there were none.
Id. — Husband and Wife — Community Property — Presumption— Joint Conveyance-Deed by Surviving Husband.—Under the law of this state, as it stood before the enactment of the codes, there was a legal presumption that all property acquired after marriage by either' husband or wife was common property, in the absence of clear and convincing proofs that it was acquired as separate property, and in the absence of such proof, it must be presumed that land conveyed jointly to a husband and wife, prior to the code, was community property, and that a conveyance thereof by the husband, after the death of the wife, passed title to the entire interest conveyed to them jointly.
Id. — Rule of Property.—The legal presumption in force prior to the codes, that ail property acquired by husband or wife after marriage was community property, was not a mere rule of evidence, but was a rule of property, and section 164 of the Civil Code, as amended in 1889, providing that property conveyed to the wife shall be presumed to be her separate property, did not and could not change the former rule so as to disturb titles already vested thereunder.
Id. — Construction of Deed—Conveyance of Half Interest.—A conveyance of an undivided half interest in a tract of land in which the grantor has merely an undivided quarter interest passes the whole of such quarter interest.
Belcher, C. The plaintiff commenced this action on the nineteenth day of January, 1891, to quiet his title to five hundred and forty-seven acres of land in Sonoma County. In the complaint filed Philip S. Fay was named as a party defendant, but as to him the action was subsequently dismissed. The complaint alleged that the plaintiff was the owner in fee-simple absolute and in possession of the property described, and the answer of defendant, Thomas J. Fay, only denied this allegation. The facts of the case may be briefly stated as follows: Edward P. Fay, being the owner of the undivided three fourths of the property described, died in January, 1872, leaving a last will and testament by which he devised to Maria Kate Fay, his wife, all of his estate. The will was admitted to probate and Mrs. Fay was duly appointed executrix thereof. By the will no power was conferred on the executrix to sell any property of the estate, nor was she ever authorized by the court to make any sale thereof, nor was any sale made by her ever confirmed by the court. And when this action was commenced the administration of the estate had not been settled or closed. Prior to the time of Edward P. Fay’s death, the other undivided one fourth of the said property was conveyed to William Fay and Bridget Fay, his wife, for the expressed consideration of five hundred dollars. In December, 1872, Bridget Fay died intestate, leaving surviving her her husband and three sons, of whom the defendant, Thomas J. Fay, was one. It does not appear from the record what was done with her estate, except that “ the proceedings and record in the matter of the estate” show that she died intestate, “leaving an undivided interest in real estate in Sonoma County, California, and admitted to refer to the lands in controversy, and that her estate had not been settled or distributed.”
On December 11, 1880, William Fay and Jeremiah G. Fay, one of the sons, conveyed “their undivided half interest in said lands” to Maria Kate Fay, and on September 27, 1883, the latter executed to Charles F. McDermott a deed purporting to convey to him the whole property described in the complaint, and on the same day McDermott executed a like deed to the plaintiff.
Ever since the plaintiff purchased the said lands in 1883, he [266]has been in the open and undisputed possession thereof, and has paid all taxes and assessments thereon, and the defendant and heirs of Bridget Fay have never lived on the land, nor demanded possession of the same or any part thereof from the plaintiff.
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