Kays v. Phelan

Citations

• 19 Cal. 128

Syllabus

<p>Van Moren v. Johnson, (15 Cal. 308) that in an action by the wife for money which, when recovered, will be her separate property subject to the management and control of her husband, he may, but need not necessarily, be joined with her as plaintiff, affirmed.</p> <p>Where a complaint alleges that the plaintiff, a married woman, signed and delivered to the defendant a deed of conveyance of premises which were her separate estate, it will be presumed, on demurrer, that the conveyance was so executed as to pass that estate, and the objection that the complaint does not allege that the husband united with her in the execution of the deed, or that she did not acknowledge its execution separately as required by statute, must be taken by answer and not by demurrer.</p> <p>Where the wife executed and delivered to defendant a deed of her separate property in consideration of Ms promise to pay her five hundred dollars, and sues for the money, alleging that it has not been paid, and that she has never consented orally or in writing that her husband might receive or use it: Held, that although his nonjoinder as plaintiff is not ground of demurrer, still if the money has been paid to him, that fact may constitute a defense to the action.</p>