Lewis v. Burns
Before: Searls
Synopsis
Husband and Wife—Community Pboperty—Evidence—Declarations —Res Gesta—In a controversy between a husband and the donees of his wife concerning lots which were conveyed to the wife by an employer of the husband and wife, who, built houses upon the lots, and who was dead at the time of trial, the declarations of the grantor in corroboration of the plaintiff’s testimony that the property was community property at the time of the purchase of the lots, and when he was building the houses thereon, and as to the character in which the purchases were made, and the terms and conditions upon which he was building the houses, though not made in the presence of the wife, are admissible in evidence as illustrative of his intent, and as forming a part of the res gestee.
Searls, C. This is an action to quiet title to two certain lots of land situate and being in Stockton, California.
Defendants had judgment, from which and from an order denying his motion for a new trial plaintiff appeals.
At the trial the evidence showed without contradiction that the plaintiff and Bridget Burns intermarried in 1873, and remained husband and wife until 1892, when the latter died.
About 1877 plaintiff and his wife removed to Stockton, where they lived and kept house, the plaintiff having at the time several horses, a couple of wagons, etc., with which he labored.
Probably about 1881 plaintiff and his wife were both employed by one De Blainville, a merchant, the former clerking in the store and the latter doing housework and cooking.
In 1882 De Blainville procured lot No. 15 in block No. 33, east of Center street, Stockton, to be conveyed to the wife of plaintiff. The consideration mentioned in the deed was two hundred and fifty dollars. De Blainville also had a house built upon the lot, for which he paid.
In 1885 De Blainville had another lot (No 10 in block 24) purchased for sixteen hundred and fifty-six dollars and five cents, and conveyed to the wife of said plaintiff, upon which a house was also built by him, he advancing the entire expense.
[383]On the sixteenth day of October, 1890, Bridget Lewis, wife of the plaintiff, conveyed the two lots above mentioned to Thomas Burns and Mary Hearlihy (her brother and sister) reserving to herself during her life the rents? issues, and profits thereof. There was no valuable consideration for this conveyance.
Plaintiff was a dissipated man and was finally discharged by De Blainville, but at what precise time does not appear. It may be inferred, however, that he was in the service of the latter a year or two. His wife continued in the service of said De Blainville until the death of the latter, which probably occurred about 1889, although the date is not fixed, except inferentially. The vital question at the trial was as to whether the lots were a gift from De Blainville to the wife of plaintiff, or whether in purchasing them De Blainville acte’d as the agent of the plaintiff and his wife and as their adviser, and was reimbursed by them for the advances made. Upon this question the conflict occurred in the evidence.
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