Lewis v. Thomas Burns

California Supreme Court Nov 19, 1898 No. Sac. No. 421Published

Before: Haynes

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Holding. The court held that the trial court's findings were not supported by the evidence and that legal errors occurred regarding the admission of secondary evidence of a deed, necessitating a reversal of the judgment.

Issues

Whether the trial court erred in admitting secondary evidence of a deed without proof of its loss or delivery.
Whether the evidence was sufficient to overcome the legal presumption that property acquired by a wife during marriage is community property.

Disposition. reversed

Quotations verified verbatim against the opinion

“Under section 164 of the Civil Code, as it stood prior to the amendment of 1889, and the subsequent amendments, a deed of bargain and sale to a married woman must be presumed to have been paid for from the community funds”

“If the deed was never delivered, its acknowledgment was wholly immaterial; and if it had been delivered it was the best evidence of all the facts appearing thereon, and, before secondary evidence could be given, its loss must be shown.”

Synopsis

Husband and Wife—Community Property—Deed of Bargain and Sale to Wife—Presumption.—Under section 164 of the Civii Code, as it stood prior to the amendment of 1889, and the subsequent amendments, a deed of bargain and sale to a married woman must be presumed to have been paid for from community funds, and to have vested the title in the marital community; and this presumption could only be overcome by clear and satisfactory evidence.

Id.—Amendment of Code not Retroactive.—The presumption established by section 164 of the Civil Code, prior to the amendment of 1889, became a rule of property in respect of conveyances previously made; and the amendment changing the presumption cannot operate retroactively so.as to alter or affect the presumption attaching to a previous conveyance.

Id.—Evidence—Oral Proof as to Deed—Delivery and Loss not Shown. The oral evidence of a notary as to the acknowledgment of the deed executed to the wife, and as to its character, as having been a quitclaim deed, is not the best evidence, and cannot be admitted as secondary evidence without proof of the delivery and loss of the deed; and where no such proof was supplied, it was error to refuse to strike out the evidence given by the notary.

Id.—Assessment Lists—Admission.—The assessment lists of the property deeded to the wife, showing an assessment made to her by the assessor, are not an admission that it was her separate property, and do not require an explanation from the husband as to his interest in the property.

Id.—Delivery of Deed — Presumption.—The presumption is that a deed duly executed was delivered at its date; and the fact that it was not recorded until after the death of the grantor, does . not render the deed insufficient evidence of its delivery at its date.

Id.—Recital in Deed of Wife—Separate Property—Finding against Evidence.—The recital in a deed executed by the wife, that the property conveyed was her separate property, acquired while living separate and apart from her husband, is not evidence of the fact recited, as against the husband; but is evidence to contradict a finding in favor of her grantees that the property was acquired by gift.

HAYNES, C. Action to quiet plaintiff’s title to two certain lots in the city of Stockton. The complaint alleges that plaintiff and Bridget Burns intermarried in 1873; that Bridget died November 3 6, 1892; that while they were husband and wife they purchased with their own means, the result of their joint labors, the lots in question; that the conveyances were taken in the name of the wife for the community and were so held until Bridget’s death, and upon her death became the sole property of the plaintiff, as surviving husband.

The answer denied that the purchases were made by the fruits or results of their joint labors, or that the lots were owned or possessed as community property, or that the conveyances thereof were taken in the name of the wife for the community, or that they were so held, and denied that their claim was without right. The answer also alleged that defendants are the owners in fee, “and that they derived title to the same from that certain deed of conveyance made, executed, and delivered to defendants by said Bridget Lewis, and dated the sixteenth day of October, 1890, a copy of which is hereto attached and marked exhibit ‘A,’ and made part hereof.”

In this deed the grantor is described as “Bridget Lewis, wife of Sylvester Lewis,” and the clause describing the property is as follows:

“Lot 15 in block 33 and lot 10 in block 24, both east of Center street, the said property being her sole and separate property, acquired by her while living separate and apart from her said husband, Sylvester Lewis, aforesaid.”

The court found for the defendants, and plaintiff appeals from the judgment and from an order deling his motion for a new trial. Appellant attacks the findings, and also specifies several errors of law occurring upon the trial.

The findings are to the effect that said lots were acquired by the wife during marriage, by way of gift, from one De Blain[360]ville and the plaintiff, pursuant to an agreement between the three, by the terms of which the title was placed in Bridget (the wife), to be held, owned, occupied, and used by her as her separate property; “that it was not purchased or acquired as the fruits and results of the joint labor and efforts of plaintiff and said Bridget, and they were not, as husband and wife, the owners of the same in community,” and were not at any time held as the property of the community, and that on the 16th of October, 1890, said Bridget conveyed said lots by her grant, bargain, and sale deed to the- defendants.

Lewis v. Thomas Burns

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