Lewis v. Thomas Burns

Citations

• 122 Cal. 358
• 55 P. 132
• 1898 Cal. LEXIS 586

Syllabus

<p>Husband and Wife—Community Property—Deed of Bargain and Sale to Wife—Presumption.—Under section 164 of the Civii Code, as it stood prior to the amendment of 1889, and the subsequent amendments, a deed of bargain and sale to a married woman must be presumed to have been paid for from community funds, and to have vested the title in the marital community; and this presumption could only be overcome by clear and satisfactory evidence.</p> <p>Id.—Amendment of Code not Retroactive.—The presumption established by section 164 of the Civil Code, prior to the amendment of 1889, became a rule of property in respect of conveyances previously made; and the amendment changing the presumption cannot operate retroactively so.as to alter or affect the presumption attaching to a previous conveyance.</p> <p>Id.—Evidence—Oral Proof as to Deed—Delivery and Loss not Shown. The oral evidence of a notary as to the acknowledgment of the deed executed to the wife, and as to its character, as having been a quitclaim deed, is not the best evidence, and cannot be admitted as secondary evidence without proof of the delivery and loss of the deed; and where no such proof was supplied, it was error to refuse to strike out the evidence given by the notary.</p> <p>Id.—Assessment Lists—Admission.—The assessment lists of the property deeded to the wife, showing an assessment made to her by the assessor, are not an admission that it was her separate property, and do not require an explanation from the husband as to his interest in the property.</p> <p>Id.—Delivery of Deed — Presumption.—The presumption is that a deed duly executed was delivered at its date; and the fact that it was not recorded until after the death of the grantor, does . not render the deed insufficient evidence of its delivery at its date.</p> <p>Id.—Recital in Deed of Wife—Separate Property—Finding against Evidence.—The recital in a deed executed by the wife, that the property conveyed was her separate property, acquired while li