1st. The lots in questionwere purchased in good faith by F. C. Smith, for the defendants George and Alfonzo Smith, his children by a former marriage, with his own separate estate.
The house was erected by F. C. Smith with his own money, and when he was in affluence, and was not an unreasonable advancement to the defendants George and Alfonzo.
2nd. The purchase being made by F. C. Smith in the name of his two sons, who were not before provided for, the presumption of law is, that the purchase was intended as an advancement, and rebuts the presumption of a resulting trust to F. C. Smith. See 2nd Story's Equity Jurisprudence, sec. 1202, et seq .
The charge of fraud in fact made by the plaintiff in this case, is without foundation. The evidence and the finding of the referee both contradict it, and there is nothing to support it.
It is as difficult to see any equity or justice in the plaintiff's case, as to find any law to support her.
In 1852 she was married to the defendant F. C. Smith, who was then wealthy; a few months after the marriage, he made the advance to his two sons, then wholly unprovided for. When the advance was made, the witnesses and the referee all say it was not disproportionableto the means of her husband, and that he still retained a large fortune.
The plaintiff brought nothing to the marriage, and certainly lost nothing that she had any right to by this act of paternal duty of her husband. Wood's Digest, p. 487, art. 2605, et seq.
JUDGES: Field, J., delivered the opinion of the Court. Terry, C. J., and Baldwin, J., concurring.
OPINION
FIELD, Judge
It is clear that the two lots in question were purchased by the husband with funds owned by him previous to his marriage with the plaintiff. This he expressly states in his examination, and there is nothing disclosed by the record which contradicts his testimony. In this separate property of his, the plaintiff possessed no interest which the law could protect so as to restrain his power of absolute disposition, whether by sale or gift. The purchase of the lots and taking the conveyance in the name of his children by a previous marriage, was not in fraud of any rights of the plaintiff. She had no claim upon the funds thus applied. They were the husband's previous to the marriage, and no interest passed to the wife by that event. The gift to the children was an advancement for their benefit, and was not forbidden by the letter or policy of the law.
But as to the building upon the lots, the case is different. The building was erected long after their purchase, and with funds which constitute common property. It is true, the evidence of the husband tends to show that a portion of the funds thus used were his separate property, but its general effect, when considered in connection with his repeated declarations to different parties, is insufficient to overcome the presumption arising from the fact of the construction being made during the existence of the community.
The law of this State in relation to the rights of husband and wife, as to the common property, is similar to the law of Louisiana and Texas; and in those States it is held, by their highest tribunals, that all property acquired, by either spouse, during the existence of the community, is presumed to belong to it, and that this presumption can only be overcome by clear and satisfactory proof that it was acquired by the separate funds of one or the other; and that the burden of proof lies upon the party claiming the property as separate. Lott v. Keach, 5 Texas, 394; Houston v. Curl, 8 Texas, 242; Gilliard v. Chesney, 13 Texas, 337; Chapman v. Allen, 15 Texas, 278; Claiborne v. Tanner, 18 Texas, 69; Ford v. Ford, 1 Louisiana, 207; Dominquez v. Lee, 17 Louisiana, 290; Smalley v. Lawrence, 9 Rob. 214; Fisher v. Gordy, 2 La. Ann. 763; Webb v. Peck, 7 La Ann. 92.
In a case decided at the present term, (Meyer v. Kinzer and wife) we have had occasion to consider whether the possession of property by either spouse during the existence of the community, acquired by purchase, created a presumption that the property was common; and we arrived at a conclusion similar to that of the Louisiana and Texas cases, that the presumption of the law is, that all property belongs to the community, which can be repelled only by clear and decisive proof that it was either owned before marriage, or subsequently acquired in one of the particular ways designated in the statute; that is, by gift, bequest, devise or descent, or was taken in exchange for, or in the investment, or as the price of such property, so originally owned or acquired; and that the proof rests upon the party asserting the separate right.
In the present case, the building was erected during the existence of the community, and the presumption that it was but the form in which the common property was invested, is too cogent to be overcome by the loose and unsatisfactory evidence contained in the record. If the separate property of the husband did, in fact, go into the building, it was essential to the preservation of its separate character, that it should have been clearly and indisputably traced by him.
The law, in vesting in the husband the absolute power of disposition of the common property as of his separate estate, designed to facilitate its bona fide alienation, and to prevent clogs upon its transfer by claims of the wife; and we are not prepared to say that, under the comprehensive language of the statute, a voluntary settlement, or a gift of a portion of the common property, not being unreasonable with reference to the entire amount, the claims against it and the situation of the parties, would be invalid. But we think it clear, that the law, notwithstanding its broad terms, will not support a voluntary disposition of the common property, or any portion of it, with the view of defeating any claim of the wife. The different declarations of the husband, respecting the object of the building, were conflicting; at one time it was to be used as a homestead, and at another it was placed on the land of his children to deprive the wife of any claim thereto. If the building can be regarded as a homestead of the parties, she has an interest in it which should have been protected; but we do not see how a homestead right can be asserted merely to a building, independent of the land upon which the building is erected. The building is to be regarded only as the form in which common property was invested upon the pretense of the husband of having a homestead, but for the real purpose of defeating any claim the wife might have thereto. The beneficent purposes of the statute could not thus be frustrated, and the right of the wife to one-half, upon the dissolution of the marriage, attached.
In Beard v. Knox, (5 Cal. 252) this Court held that the common property could not be disposed of by the husband by will, so as to defeat the rights of the surviving wife; and the same doctrine is maintained in the matter of Buchanan's Estate, (8 Cal. 507). In the first case, the Court said: " Our statute has done away with the common law right of dower, and substituted in its place a half interest in the common property. This liberal provision was intended for the benefit of the wife, and the intention of so humane and beneficent a law should not be defeated, by adopting a rule of construction which would leave the future maintenance of herself and family entirely at the caprice of the husband."
Voluntary conveyances, given on the eve of marriage, for the purpose of depriving the intended wife of her right of dower, where that common law right exists, are fraudulent as against her claim. This was so adjudged in Swaine v. Perrine, (5 John. Ch. 482). And upon the same principle, a voluntary disposition by the husband of the common property, or a portion thereof, for the like purpose of depriving the wife of her interest in the same, must be held ineffectual against the assertion of her claim.
It follows, therefore, that the plaintiff, upon the dissolution of the community, was entitled to one-half of the building erected out of the funds of the common property; and, as the title of the land is vested in the children, the separate value of the house and land should be first determined, and a sale then decreed of both, with directions to pay to her one-half of such proportionate part of the proceeds as the value of the house bears to the entire property, the balance and the proceeds of the land being placed in the hands of guardians of the children, and invested, under the direction of the Court, for their benefit. The husband having deliberately placed the building upon the property of his children, cannot himself have any claim upon it or its proceeds. Its character as common property is declared only for the protection of the interest of the wife.
Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.