Estate of Hill , 167 Cal. 59 ( 1914 )

"This is an appeal by the heirs of Isabella Hill from the decree and from the order denying their motion for a new trial in a proceeding to determine heirship and distributive rights in the estate of Stephen Hill, deceased. Isabella Hill and Stephen Hill were husband and wife. Stephen Hill died first intestate and without issue. His wife Isabella Hill for a time administered his estate when she too died intestate. The sole matter of controversy is whether a tract of two hundred and thirty-six acres of land left by Stephen Hill is his separate property or the property of the community. The court made full findings of probative facts and then, both in the form of an ultimate finding of fact and in the form of a conclusion of law held the land to be the separate property of Stephen Hill. Appellants introduced evidence to show, and the court found, that in 1864 Stephen Hill, then unmarried, was the sole owner of the property. While still unmarried he executed and delivered to John S. Connick (one of the heirs at law of Isabella Hill) a deed conveying to Connick an undivided one-half of the land; Connick took possession with Hill of the land and remained in the joint occupancy and possession with Hill until October 15, 1866. Hill married his wife Isabella on June 1, 1865. In October, 1866, Connick agreed to sell and Stephen Hill agreed to buy Connick's one-half interest in the property. Thereupon Connick delivered up the possession of the property to Stephen Hill and returned to Stephen Hill the deed to the property that Hill previously had made to him. This deed had never been recorded. No written or other conveyance of any kind was then or thereafter made by Connick to Hill and no other act of any kind was done to perfect the conveyance by Connick to Hill other than that thereafter Hill retained exclusive possession of the land and in August, 1867, paid Connick one thousand one hundred dollars, and about two months thereafter paid him another one thousand one hundred dollars, thus completing the payments to Connick of the purchase price. The findings are silent as to whether or not the money so paid was itself the separate property of Hill, and upon this appellants argue that as the title in Connick could not have been transferred by the mere redelivery and destruction of the unrecorded deed, it follows that the only title which Hill did acquire to this undivided half was a title by adverse possession, which adverse possession was initiated while he was married to Isabella Hill and was consummated during such marriage. The necessary conclusion, it is argued, to be drawn from a title thus obtained is that the undivided one-half of the land was community property. But the court made other findings determinative of the controversy. It found that during the administration by Isabella Hill of her husband's estate she subscribed to an inventory and appraisement which declared the two hundred and thirty-six acres to be the separate property of her husband, and other real estate and personal property to be community property; that thereafter she applied for a homestead to be carved out of this separate property, declaring that none of the community property was suitable for such homestead, and that she and her husband had resided upon the separate property, and that she, the widow, had continued there to reside after his death, and she prayed the court `to set aside to her a homestead out of the above described real property which is the separate property of the decedent, including the said dwelling thereon.' This the court did in accordance with the allegations and prayer of the petition, and its decree so doing was never appealed from, vacated, or annulled. This decree so setting aside the homestead was not only a judgment in rem binding upon all parties (Kearney v. Kearney,72 Cal. 591, [15 P. 769]; Hanley v. Hanley, 114 Cal. 694, [46 P. 736]), but it was a decree invited by Isabella Hill, and therefore in an especial sense binding upon her, her heirs and her privies. She was not merely bound, as was all the world bound, because it was a proceeding in rem, she was bound because she had solicited and demanded a right from the estate of her husband based upon her declaration as to the character of the land. Having invited this judgment and having accepted the fruit of it, it needs no authority to show that she is bound by it. Indeed, during her lifetime she never questioned it. It will not do to argue that the character of the property as separate or community property was not involved in the homestead proceeding and decree. It was not only directly involved but the court could not with propriety have entered the decree which it made excepting under the determination which it also made, that the property was the separate property of Stephen Hill. `In all the cases,' says Greenleaf (1 Greenleaf on Evidence, sec. 543), `the same principle prevails, and the judgment, acting in rem, shall be held conclusive upon the title and transfer and disposition of the property itself, . . . by whomsoever the latter may be questioned; and whether it be directly or indirectly brought in question.' (See, also, Estate of Harrington, 147 Cal. 124, [109 Am. St. Rep. 118, 81 P. 546].)

"It results then that the findings show that the question of the character of this property has been adjudicated and that this adjudication raises an estoppel against the pretensions of the heirs of Isabella Hill. It is, of course, no answer to this to cite such cases as Estate of Granniss, 142 Cal. 1, [75 P. 324], and Estate of Claiborne, 158 Cal. 648, [112 P. 278], which contain no more than the axiomatic declaration of this court to the effect that the declaration in a testator's will to the effect that any given piece of property is separate property or is community property is not controlling, and that the character of the property will be determined by the nature of its acquisition.

"It follows herefrom that the decree and order appealed from were rightly made and given and they are therefore affirmed.

"We concur: Lorigan, J., Melvin, J."