Amos v. Griffin , 1 Cal. Dist. Ct. 348 ( 1857 )

Norton, J.

The principal question raised in this case is the same as that settled in Meyer vs. Kinzer,^* decided this term, viz., the tenure under our law, by which the husband and wife hold property conveyed to them, or her, during coverture. The principal difference between the circumstances of the two Cases, affecting this question is, that in that instance the chattel interest, a note and mortgage, ivas made and delivered to the husband and wife jointly, while in the present, the property was conveyed directly to the wife alone. Counsel for plaintiff contend that the circumstance of the interest in controversy having been conveyed to the wife alone, and in her own name, raises a presumption that the husband intended it as a gift, or advancement to her, and is sufficient to sustain the claim Avhich she now asserts to it, as her undivided property. This presumption, however, cannot be entertained, for the instrument through Avhich she necessarily claims, if she claim at all, must be held conclusive ; and it shoAvs that the transaction by which the transfer to her was made, by Reddish, in November, 1855, was a sale; therefore, the manner by which the title to this property was acquired, comes within the strictest interpretation of the words of our statute, defining the channels through which, if the title to property be derived, it shall be deemed to be held in common. This was a purchase by the wife. Being, then, common property, it was subject to Amos’ right of disposition, and he having disposed of it, the plaintiff can now claim np title thereto.

It further appears, however, that this interest was common property at the time of the divorce of the plaintiff from her husband, which took place in January, 1857, while the deed from Amos to Culver k Armstrong bore date August 10th, of the same year. This being the case, it should have been divided under order of the court, at the time of granting the decree of divorce. The statute ( Wood's Cal. Dig. p. 488 § 2615) regulating these proceedings, provides that the court shall make a division of the property held in common between the parties, at the time, etc.; but in this case no division has in fact been made, and it would seem that it remains subject to the husband’s disposition. Certainly it has not become her individual property. Perhaps she has a lien on the property for her moiety thereof, and the proportionate amount of the profits, by virtue of the above provision of the statute. But under the present aspect of the case she is not entitled to recover.

Let judgment be entered accordingly.

* See ante, p. 326.