Opinion
No. 5656.
May 14, 1931.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.
Action to quiet title. Judgment for defendants. Affirmed.
Rhodes Estabrook, for Appellant.
It is the settled law of this state that a husband may when free from debts make a gift to his wife of any or all of his separate property or his interest in the common property. ( Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169; Sassaman v. Root, 37 Idaho 588, 218 P. 374; McMillan v. McMillan, 42 Idaho 270, 245 P. 98.)
The fact that the husband may have conducted the business of farming the ranch, or assumed some authority over it, does not destroy its separate character. ( In re Nelson's Estate, 104 Cal.App. 613, 286 P. 439; Chicago Portrait Co. v. Sexton, 49 Idaho 128, 286 P. 615; Wilkerson v. Aven, 26 Idaho 559, 144 Pac. 1105.)
S. Ben Dunlap, for Respondents.
This court has held in a long list of cases that all property acquired by either spouse during coverture is presumed to be community property, and that the burden of proof rests upon the party who asserts it to be separate property to show such fact by a preponderance of the evidence. ( Clifford v. Lake, 33 Idaho 77, 190 P. 714; Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468; Vaughan v. Hollingsworth, 35 Idaho 722, 208 P. 838.)
Where the presumption exists that property is community the wife cannot overcome such presumption by mere naked statements that the property was a gift to her, but it is necessary to present facts from which the conclusion can be reached that the property is not community. ( Milisich v. Hillhouse, 48 Nev. 166, 228 P. 307.)
Appellant sued to quiet title to certain realty as her sole and separate property acquired by gift from her husband during coverture.
Respondents claimed title thereto as purchasers at execution sale on a judgment against appellant's husband, levied on the realty as community property.
The court found as a fact that the tract was community property, and quieted title in respondents.
The essential assignment of error is the insufficiency of the evidence to support the findings and judgment.
Appellant and her husband testified the property was first purchased jointly, then transferred to George Randall, a friend, for a stated consideration of $4,800, in order to have him later deed it to appellant as a gift from her husband, their understanding being that a direct conveyance could not be made. The retransfer from Randall to appellant was for a stated consideration of $3,000, though only $10 was paid by Mr. Prescott. The deed contained no notation that the property was to be appellant's separate estate. ( Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090.)
Only appellant and her husband testified, and in addition to the above they stated in substance that after the conveyance from Randall, they both lived on the place, improved it with joint funds, indiscriminately used the income therefrom, and in general made no distinction between their property, real or personal, as separate or community.
In Wilkerson v. Aven, 26 Idaho 559, 144 P. 1105, the transactions as to the wife's property were distinct, and while the fact that the husband deals with the wife's property is not sufficient alone to show that it was community property ( Chicago Portrait Co. v. Sexton, 49 Idaho 128, 286 Pac. 615), the burden was on appellant to prove her contention ( McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 Pac. 220), and while property may be conveyed from husband to wife as a gift, if no rights of creditors are at the time involved (and none were herein) ( Boise Assn. of Credit Men v. Glenns Ferry Meat Co., 48 Idaho 600, 283 P. 1038), all property acquired by the wife during coverture is presumed to be community property ( Moore v. Croft, 47 Idaho 568, 277 P. 425), and it was the province of the trial court to reconcile and determine the facts herein. ( Hill v. Porter, 38 Idaho 574, 223 Pac. 538.) The statements of husband and wife that the property was the separate property of the wife are mere conclusions and not sufficient to overcome the above presumption. ( Swager v. Peterson, 49 Idaho 785, at 788, 291 P. 1049, at 1050.)
The circumstances detailed in the record, and the necessity of explaining the deed from Randall to appellant, justified the trial court's decision. ( Oylear v. Oylear, 35 Idaho 732, 208 Pac. 857; Wheaton v. Bradshaw, 44 Idaho 129, 255 P. 409; Bear Lake State Bank v. Wilcox, supra.)
The judgment is therefore affirmed. Costs to respondents.
Budge, Varian and McNaughton, JJ., and Babcock, D. J., concur.
Petition for rehearing denied.