Hand v. Hand

8 P. 705, 68 Cal. 135, 1885 Cal. LEXIS 766

• Court: California Supreme Court
• Decided: November 30, 1885
• Docket: No. 8981
• Status: Published

Opinions

Morrison, C. J.

This case, which comes before us on the judgment roll, is a suit to quiet title to certain lots of land in the city of San Francisco. It is conceded that the property in question was at one time owned by the plaintiff, it having been purchased and paid for with her separate funds. But it is claimed'that the defendant has succeeded to the ownership thereof by virtue of certain instruments, executed by the plaintiff to the defendant. The sufficiency of those instruments to convey the title is the question before us. It was held in the Superior Court that the defendant had acquired the title of the plaintiff, and judgment was rendered in his favor. The appeal is from that judgment.

It appears from the findings in the case that the plaintiff was a married woman, her husband being a resident of England, but for a great many years living separate and apart from her husband. As early as 1863, a meretricious union was formed by plaintiff and defendant, and they had lived in California as husband and wife from 1863 down to the year 1878. The first finding is, “that plaintiff is, and ever since the sixth day of October, 1855, hath been, the lawful wife of one William Nickels.”

“ 2. That during all this time the said William Nickels hath been and still is a resident of Colchester, England, and hath never been in the state of California, or in the United States of America.

“3. That plaintiff and said Nickels have not lived or cohabited together since 1863, but that plaintiff and defendant lived and cohabited together as husband and wife from 1863 to 1878; that plaintiff has been a resident of this state continuously since 1868.”

It is conceded on both sides that the certificate of acknowledgment to the deed attempting to convey the property in question, made by plaintiff to defendant under the name of Mary Ann Hand, on the thirteenth day of August 1873, is not in the form prescribed by the statute for the deeds of married women, but as the eleventh finding shows, is in the form prescribed by the statute for the acknowledgment of a feme sole, and not in the form prescribed for the acknowledgment of a married woman. Afterward, to wit, on the twenty-seventh day of July, 1878, she executed another instrument to the defendant, acknowledged in like manner, which said instrument was in the name of Mary Ann Halls.

But was the conduct of the plaintiff such as to take from her the right to invoke the statute referred to for the purpose of defeating her deed? We are of the opinion that it was. During the entire period of her residence in California, she was never known as the wife of Nickels, but passed as the wife of Hand, with whom she was living as his wife, but to whom it is not pretended she ever was married; and a part of the time she passed by her maiden name of Mary Ann Halls. Indeed, she had done all she could do, in the absence of a legal divorce, to separate herself from her lawful husband, and after many years ignoring her husband, she seeks to avail herself of the' plea of marriage to defeat an instrument made and delivered by her as her deed. This case does not differ in principle from that of Reis v. Lawrence, decided by this court, and reported in 63 Cal. 129. (See also Rosenthal v. Mayhew, 33 Ohio St. 155.)

There are other points made by the respondent, but it is not necessary to consider them, as we think the judgment must be affirmed on the one already stated.

Judgment affirmed.

Myrick, J., concurred.

Thornton, J., concurred, in the judgment.