Morgan v. Ball

Foote, C. This action is for the recovery of the possession of certain personal property from the hands of the defendant, or if delivery cannot be had of the property, for its value. The court below gave judgment as prayed for, and from that this appeal is taken.

In a former adjudication by the appellate court, the property concerning which this litigation is now had was declared to be that of the plaintiff, derived by gift from her then husband, W. J. Morgan, and made by him without any fraud as to his existing creditors. (Morgan v. Hecker, 74 Cal. 540.)

It appears from the findings in the present cause that the property, consisting of a mare, her colt and a buggy, were given to the plaintiff, Belle M. Morgan, then the wife of W. J. Morgan, by him, in good faith, when he was solvent and able to pay his debts, and that at the time of the making of the gift the property was delivered to and accepted by his wife.

Several years after the gift was so made, delivery and. acceptance had, the husband became indebted upon ar promissory note to one Daniel McCarthy in the sum of three hundred dollars. After the note became due,' on the 3d of May, 1888, it having been transferred to Fred Hecker, he'Commenced an action to recover what was due upon it. On the day the action was begun,-an attachment was issued in aid of it, and on the 3d of May, 1888, was. [95]levied by the sheriff of Butte County, the defendant here, upon the property involved in this discussion.

On the 18th of May, 1886, Belle M. Morgan filed an inventory of her separate property, including the mare and buggy, but not the colt, in acordance with the provisions of sections 165 and 166 of the Civil Code.

About the month of May, 1886, W. J. Morgan, the huspand of the plaintiff, left the state of California, and has never returned. At the time of his departure, and on the 23d of March, 1886, when he became indebted to McCarthy on the note afterwards transferred to Hecker, Morgan was greatly in debt and insolvent.

It is further found that after the sixth day of July, 1883, the day on which Morgan gave and delivered possession of the property to his wife, as set forth heretofore, and until his departure from this state in 1886, he used it jointly with her, with her consent and knowledge, and that his use of it was the same after as before the gift; that there was nothing in the use of the same property by the plaintiff, Belle M. Morgan, which was inconsistent with its ownership by her husband, the donor, or from which the public.could determine that the title of the property had passed, hy gift or otherwise, to the plaintiff; that the colt was the foal of the mare, and all the expense of its getting and rearing was' paid by the husband; that the use of the colt .by him after its birth was identical with his use of the mare and buggy, but that at all times after-the gift and delivery of posession was made, the husband; represented, claimed, and admitted that the property in question;was the separate property of his wife, and whenever .it w@s. loaned, out to or used by any other person, than.the wife or her husband, it was loaned out and used by .the direction and consent of the wife, and not by that, of the husband; that during nearly all of the time since .the departure of the husband from, the state, and from.whom.it seems at this time the wife is divorced, the property has been the subject of litigation,.and in the