Gratton v. Weber

Hanford, J., (after stating the facts as above.) Prior to the revision of the community property law by the act of 1879, non-resident married persons were not affected by the community property law of Washington Territory. The act of 1879, however, and all subsequent legislation upon the subject is general, and applicable to all subsequent acquisitions of real estate situated within the territory, by non-residents as well as by inhabitants. Property acquired by purchase, by a married person, is presumed to be community property, and there is no evidence in this case to overcome that presumption as to the land in controversy. I hold that the complainant did acquire an interest therein equal to that ox her husband, Emil Weber. The court which granted the divorce had no power to make a decree which could, of itself, operate upon land in Washington Territory,so as to transfer the title. Said decree does not purjiort to have such effect, and there is not in the record in that case any description of this land, by which the same or any part of it could be identified, or recital or expression showing that the court intended to touch the complainant’s interest therein. Her complaint and the decree only refer to the property of Weber. The natural inference and legal presumption is that no reference was intended to the community property of Weber and his wife. Payment of the money decreed to complainant, without an exaction of a conveyance of her interest in this property, and her acceptance of it, cannot have the effect to convey or extinguish her title, or create an estoppel. It is certainly illogical to say that her failure to execute a deed in compliance with the court's order is equivalent to a conveyance of her interest in this land as if the deed had been made. The circumstances under which the $5,000 was paid without a deed from the complainant being exacted, either by Weber or the officers of the court, are not 854 shown, and there is absolutely no evidence of any such acts on her part as should, either in a court of law or equity, bar the complainant from asserting her right to and claiming the land referred to. It is the opinion of the court that she is the owner of an undivided one-half of said land as tenant in common with the vendees of Weber, and a decree will be entered as prayed for.