Althof v. Conheim

Crockett, J., delivered the opinion of the Court:

The only point on this appeal is whether or not the demurrer to the complaint was properly sustained. It appears from the complaint' that the defendants are husband and wife; that the wife resided in San Francisco and carried on business in her own name, whilst the husband resided in another State; that the wife, desiring to purchase a lot in Oakland, borrowed of the plaintiff $520 in gold coin to enable her to make the purchase, and which was actually paid as part of the purchase money; that she took the deed in her own name ; that the husband afterwards arrived in this State, and he and his wife took possession of the lot and have resided on it as their home; that they have since sold a portion of the lot and yet retain the balance of it; that for the portion so sold they received a sum nearly equal to the original purchase money for the whole, and greatly exceeding the amount loaned by the plaintiff; that the husband and wife united in the sale and conveyance, and in the receipt of the purchase money, and are now in the joint use and enjoyment of it. The prayer is for a judgment against both, for the amount loaned, with interest, and that it be declared a lien on that portion of the lot which remains unsold.

It is evident there can be no personal judgment against the wife. (Maclay v. Love and Wife, 25 Cal. 367; Smith v. Greer, 31 Cal. 477; Brown v. Orr, 29 Cal. 120.)

The complaint does not aver that the purchase money paid by the wife, exclusive of the 8520 loaned by the plaintiff, was of her separate estate; and, in the absence of such an averment, the presumption is it was common property. On acquiring the title to the lot, therefore, it became the common property of the husband and wife, and was subject to the disposition of the husband alone. The wife, therefore, was not a proper party to the action, and her demurrer was properly sustained.

But the demurrer of the husband ought to have been overruled. If the wife had no previous authority from the husband to contract the debt to the plaintiff, he adopted and ratified the transaction by using and occupying the lot, selling a portion of it, and appropriating the proceeds to his own use. Whilst dealing with the property as his own, which was in part paid for with the plaintiff’s money, borrowed by the wife for that purpose, the law will presume either that the wife had authority to contract the loan, or that the husband has since ratified the transaction and agreed to be bound by it. He will not be allowed to say that he ratifies so much of it as inures to his advantage, by accepting the benefit of a purchase made by his wife partly with the plaintiff’s money, but repudiates so much of it as requires the sum advanced by the plaintiff to be refunded. He must take the transaction cum onere, if he adopts it at all. In ratifying the purchase by his wife, he ratifies her engagement to the plaintiff as well, and in adopting one he adopts the other. He also demurs specifically to so much of the complaint as prays that the amount due to the plaintiff be decreed to be a lien on the lot, and for a judgment in gold coin. But it is well settled in this Court that the prayer of a complaint is not the subject of demurrer. (Rollins v. Forbes, 10 Cal. 299; People v. Morrill, 26 Cal. 336.)

Judgment reversed as to the defendant, Max Conheim, with an order to the District Court to overrule his demurrer to the complaint, and allow him to answer on the usual terms. Judgment affirmed as to the defendant, Elise Conheim, and the entire costs of this appeal to be paid by the defendant, Max Conheim.

Spbag-ue, J., dissented.