Wilson v. Sullivan

FLANIGAN, J. (After Stating the Facts as Above.) — Appellant’s attack upon the judgment is based upon the propositions: (1) That the oral agreement between the appellant and his wife was actually executed by the delivery of the deed of the town-site trustee, issued at the instance of the wife, which, it is said, carried out and fully performed the agreements of the parties, so that the statute no longer applies; and (2) that the property “under this special arrangement entered the marital community as the separate property of John Wilson, and under and by virtue of the agreement made between the husband and wife based on the consideration of $3,500 expended by the husband from his separate funds on the separate property of the wife.” It is conceded that the Morley Avenue property was in the lifetime of the wife her separate property, which, upon her death, descended to her lawful heirs. The consideration for the original transfer of the right of possession in and to the Elm Street property, [129] and the cost of the improvements thereon, were paid for with moneys earned by the husband during* the marriage. There is no testimony to show who paid the purchase price for the conveyance of the title from the town-site trustee under the United States patent, and we must therefore presume that this consideration was paid with community funds. Under these facts, and the presumption of law that “all property found in the name or possession of either spouse during the marriage is prima facie common” (McKay on Community Property, § 255, and cases cited), there can be no doubt that the Elm Street property was to be deemed the community property of the spouses. It therefore follows that, at the time of the issuance of the town-site deed, if not before, Mrs. Wilson acquired and became vested with a community interest in the Elm Street property which would pass to her heirs as an estate of inheritance (Estate of Wilson, supra), unless she had been divested of her title thereto in some manner recognized by law as competent to effect such divestiture. There is no suggestion in the argument of counsel for appellant, nor in the testimony of any involuntary alienation of decedent’s interest in the property under the operation of an estoppel or otherwise. It must therefore. be taken as conceded, and rightly so, that, if the title and ownership of the deceased wife in the property is to be considered as having been at any time transferred to the appellant, such result is to be predicated upon some voluntary alienation made by her. The contention that the issuance of the deed by the town-site trustee, at the procurement of the wife, and its recordation in the office of the county recorder of Santa Cruz county, Arizona, executed the agreement so as to take the transaction out of the statute, is not tenable. Assuming the agreement to have been that the conveyance so made should vest the entire estate in appellant, it cannot be given effect under the stat [130] ute, which prescribes a different method for a present transfer, in the absence at least of circumstances creating an equitable estate of such character as would justify a court in decreeing the transfer of the outstanding legal title. Conceding the strong moral foundation for appellant’s claim to the property, there is no showing of any basis for equitable relief of the character referred to. It is likewise apparent that the facts do not warrant the conclusion that the property ever was the separate estate of appellant, as the entire consideration therefor was paid out of community assets. The case is simply that the deceased wife never declared any conveyance of her interest in the property by an instrument in writing subscribed and delivered by her, or by her agent thereunto authorized by writing, and, as the estate of the decedent was an estate of inheritance of which she could voluntarily divest herself only by a conveyance made in accordance with the statute, this property upon her death, descended to her lawful heir, the appellee. This conclusion is in accordance with the decision of the Supreme Court of Washington in the case of Graves v. Graves, 48 Wash. 664, 94 Pac. 481, a case much like the one at bar, construing and applying a section of the statute of frauds similar in effect to our own. The court in that case, holding against the contention of the husband, said: “It was_ not claimed by the respondent that there was any written agreement, or that any of their property was passed by deed from one to the other, and it is conceded that the property in dispute was acquired and improved by community funds earned after marriage. The statute makes such property community property. Ballinger’s Ann. Codes & Stats., § 4490. An oral agreement that such property might be held as separate property by one of the spouses would be in the face of this statute, and also another statute which provides that all conveyances of real estate or any interest therein shall be by deed. [131] Ballinger’s Ann. Codes & Stats., §4517; Churchill v. Stevenson, 14 Wash. 620, 45 Pac. 28; Nichols v. Oppermann, 6 Wash. 618, 34 Pac. 162; Sherlock v. Denny, 28 Wash. 170, 68 Pac. 452. If such agreement was made, ... it was therefore void, and did not change the character which the law gave to the property.” See also, In re Parker’s Estate, 115 Wash. 57, 196 Pac. 632; Union Savings & Trust Co. of Seattle v. Manney, 101 Wash. 274, 172 Pac. 251; Dobbins v. Dexter Horton & Co., 62 Wash. 423, 113 Pac. 1088. Thu action of the court in overruling appellant’s demurrer to appellee’s amended complaint, the demurrer being based upon the provisions of paragraphs 695, 697, 698 and 700, Revised Statutes of 1913, is assigned as error. The assignment consists substantially of flat statements of the applicability of the paragraphs cited, and a claim that the testimony shows that the appellant had peaceable and adverse possession of lot 1, block 4, paying taxes thereon, using and enjoying the same for the statutory period, etc., without supporting these claims by argument or citation of authority. In the absence of argument to support the assignment, and especially the failure to consider the effect to be given the probate proceedings, or to show how and when the appellant repudiated the effect of his possession of the property as a tenant in common with the appellee, so as to make his possession adverse, we must hold this assignment of error to be abandoned. We may say, however, that our examination of the authorities submitted by appellant pertinent to the question, suggested by the assignment, convinces us that the action of the court overruling the demurrer was correct. For the reasons given, the judgment will be affirmed. ROSS, C. J., and MoALISTER, J., concur.