Meyer v. Kinzer

1 Cal. Dist. Ct. 326

• Court: California District Court
• Decided: October 15, 1857
• Status: Published

Opinion

Norton, J.

In this case the complaint is filed to obtain a decree to quiet title. There is a slight inaccuracy or informality in it where the plaintiff avers his possession of the property in controversy. The allegation is, that he is the owner and occupier thereof, and not that he is in possession. As this however appears to have been purely accidental, the averment is sufficient upon this point. It seems Kinzer’s wife joined in the deed conveying the property to the grantors of plaintiff, though for what reason the joinder was made, it may be & little difficult to conjecture, for the property being then held in common by her husband and self, it was subject to Ms right of disposition» A mortgage was given by the purchaser to the vendors at the time of the sale, which was subsequently assigned by Kinzer, and wMeh in the hands of the assignee was paid by the mortgagor, who subsequently conveyed the property to plaintiff. Mrs. Kinzer in her answer now claims a moiety of the amount to secure which the mortgage was given, contending that by the common law, the presumption arising from the fact of the mortgage having been given jointly to her and her husband, is, that he intendedit as a gift or advancement to her. There is no such inference to be drawn. The principles of the common law in reference to the property of husband and wife, do not apply to the rights of this relation, as it exists under our statute. The note and mortgage given by Gager upon the sale by Kinzer, were common property, and as such subject to the husband’s disposition. The possessions of the husband and wife, when they have once acquired this character of common property, retain it until it shall have been expressly divested by some act, unequivocally evincing an intention that this shall be its effect. The property must be conveyed directly to the wife, to her separate use and banefit. By the common law, the husband would, in this case, having reduced the chattel interest to possess» sion, be entitled to sell it or to dispose of it otherwise, according to Ms discretion. At all events in the present instance, the note and mortgage being common property at the time of the assignment by Kinzer, he could do what he pleased with them, and when he did assign them he conveyed the interest of Ms wife as well as of himself, and she therefore can no longer claim any estate in the premises.

Let decree be entered as prayed for in the complaint.