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too late to meet the statutory requirement of section 659, Code Civil Proc., the decision in the cause having been made and filed on the seventh March preceding. Hook v. Hall, 6 Pac. Rep. 422. The order appealed from should be therefore affirmed.
We concur: SEARLS, C.; BELCHER, C. C.
BY THE COURT. For the reasons given in the foregoing opinion the order is affirmed.
(67 Cal. 458)
SHUMWAY v. LEAKEY. (No. 9,963.)
Filed September 24, 1885.
1. ACTION BY MARRIED WOMAN FOR SEPARATE PROPERTY.
It is not necessary for a married woman to aver coverture in her complaint in an action to recover her separate property. If such fact appears on the trial, she may show that the property sued for came to her as a gift, and was her separate property.
2. COMPLAINT STATING COVERTURE-ALLEGATIONS NECESSARY.
If a complaint avers that plaintiff is a married woman, it is necessary that she should state such other facts as will entitle her, as such, to maintain the action.
3. SEPARATE PROPERTY OF MARRIED WOMAN-SCHEDULE AS EVIDENCE OF TITLE. The schedule of a married woman's separate property, filed and recorded in the county recorder's office, is prima facie evidence of her title, and is admissible as such to show the same in an action by her. Civil Code Cal. 165, 166. 4. TITLE-ASSESSMENT ROLL AS EVIDENCE OF.
An assessment roll is not admissible to show that property claimed by a married woman, plaintiff, is in her husband and so assessed, unless proof is made and offered that the woman herself gave in the property as that of her husband, or that she had knowledge that it was so assessed.
5. FOREIGN LAWS-PROOF OF.
Foreign laws are to be proven like other facts, but in the absence of such proof they will be presumed to be the same as the local laws.
6. SAME-PROPERTY ACQUIRED UNDER-TENURE OF.
The tenure of property acquired under foreign laws will depend on such laws, unless no proof is made thereof, when the rule that the laws will be presumed to be the same as the local laws will apply.
Department 1. Appeal from superior court, Lassen county.
A. L. Shinn and J. D. Goodwin, for respondent.
SEARLS, C. The plaintiff, a married woman, brought this action to recover, as her separate property, certain personal property from the defendant, who, as sheriff of the county of Lassen, had levied upon and taken the same under a writ of attachment against plaintiff's husband, and as the property of the latter. Plaintiff had verdict and judgment. Defendant appeals. Defendant appeals. It was not necessary for plaintiff to aver coverture in her complaint, and when that fact appeared at the trial it was competent for her to show that the demanded property came to her as a gift, and was her separate prop
erty. Had her complaint shown her to be a married woman it would have been incumbent upon her to state such other facts as were necessary to entitle her as such to maintain the action. Thomas v. Desmond, 63 Cal. 426. In Peters v. Fowler, 41 Barb. (N. Y.) 467, it was held that in that state (New York) "the fact of coverture has ceased to have any relation to the technical right of maintaining an action by a married woman in respect to her separate property, and the allegation of coverture in the complaint is no longer necessary." The schedule of plaintiff's separate property recorded in the office of the county recorder, November 13, 1877, was properly admitted in evidence. The Civil Code, §§ 165, 166, provides for filing and recording the separate personal property of the wife, and "the filing of the inventory in the recorder's office is notice and prima facie evidence of the title of the wife." The cattle described in the schedule are of the same general kind as a portion of that seized by the sheriff; and whether in fact the identical property so seized, was a question to be determined by evidence aliunde.
Defendant offered in evidence the assessment roll of Lassen county for the years 1882-83, for the purpose of showing that no separate property had been assessed to plaintiff, and also to show that part of the property described in the complaint was assessed to B. F. Shumway, the husband of plaintiff, as his own property, and not as the property of his wife, the plaintiff. Plaintiff objected, on the ground that such evidence was immaterial and incompetent. The objection was sustained, and the ruling is assigned as error. In Arnold v. Skaggs, 35 Cal. 684, an assessment roll was held competent as evidence. The question was whether defendant, Skaggs, or one Ingles owned certain personal property; and the evidence showed that Ingles gave it in to the assessor as the property of Skaggs; that the latter appeared before the board of equalization for the purpose of procuring a reduction of the amount of the assessment. Under these circumstances the assessment roll was held competent to prove property in Skaggs. The present case differs materially from that. Here there was no proof, or offer to prove, that plaintiff gave in the property as that of her husband, or that she had knowledge that any part of it was so assessed. Under such circumstances the assessment roll was not competent evidence to prove property out of her and in her husband. Chambelin v. Vance, 51 Cal. 75.
The refusal of the court to give the third and fourth instructions asked by defendant is assigned as error. These instructions were to the effect (1) that the laws of another state can only be shown to the jury by offering them in evidence as other facts are proven; (2) that if the property claimed by plaintiff was by her received as a gift in another state, then it was her separate property, or community property, as provided by the laws of the state where the gift was made, and if brought to this state it would be held here by the same. title which she had to it in such other state, and before plaintiff can
hold the same here as her separate property she must show it was her separate property when brought here.
The evidence tended to show that certain cows were presented as a gift to plaintiff in 1863 in the territory of Nevada; that in 1866 she sold a portion of the increase of such cows and brought the residue to this state, and that the demanded property has been mainly purchased with the proceeds of sales of such cows and their increase, which increase has amounted to a band or herd of many hundred cattle. The record shows affirmatively that no evidence was introduced tending to show what the laws of Nevada were in 1863 concerning the separate property of married women. It is true that the laws of
a foreign state are to be proven like any other fact. It is equally true that the tenure by which personal property acquired in another state and brought here is held, as between husband and wife, will depend upon the laws of the state where acquired. Kraemer v. Kraemer, 52 Cal. 302. It is nevertheless true that, in the absence of any proof as to the laws of another state, they will be presumed to be the same as our own. Marsters v. Lash, 61 Cal. 622; Norris v. Harris, 15 Cal. 226. It follows that as under our law property acquired by the wife during coverture by gift is her separate property, and that we must presume the laws of Nevada to be the same as our own, and there being no testimony to give point to the instructions asked, they were inapplicable, admitting them to be correct as abstract propositions of law.
We are of opinion the judgment of the court below should be affirmed.
We concur: FOOTE, C.; BELCHER, C. C.
BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.
(67 Cal. 461)
QUINN v. WINDMILLER. (No. 9,768.)
Filed September 24, 1885.
1. UNITED STATES SURVEYS-JUDICIAL NOTICE TAKEN OF.
Courts take judicial notice of the fact that, under the United States system of surveys of public lands, a quarter section is intended to be just 40 chains square; and whenever a claim is made that a quarter section contains a greater area, it must be proven by affirmative evidence that the lines were so run upon the ground as to include that greater area.
2. ADJOINING LAND-OWNERS-DIVISION FENCE-ESTOPPEL.
Adjoining land-owners who erect a division fence along their supposed boundary line, under an agreement that on discovering the true boundary line the fence shall be changed to comply with such line, acquire no rights as against each other by reason of the erection of such fence, either upon pre scription or estoppel, until the true boundary is determined.
Department 1. Appeal from superior court, Sacramento county.
Freeman & Bates, for appellant.
A. P. Catlin, for respondent. BELCHER, C. C. The plaintiff and defendant own lands which adjoir on two sides; a mile on one side and a half mile on the other. In 1872 or 1873, the plaintiff's grantor and the defendant constructed a fence to divide their lands. This fence remained where it was placed till May, 1883, when the defendant, claiming that it was on his land and not on the true lines between them, removed a portion and asked the plaintiff to remove the balance of it. This action was then com menced by the plaintiff to quiet his title up to the lines of the fence as it stood before any of it was removed. The case was tried, and judgment rendered in favor of the defendant, from which, and from an order denying a new trial, the appeal is taken.
In his complaint the plaintiff describes the land to which he claims title as commencing at the center of a certain section 7, and running thence north 43 chains to a fence as it stood in the fall of 1882; thence west along the fence 83 chains to a fence; thence south along the fence 63 chains; thence east 83 chains; and thence north 20 chains, to the place of beginning.
In making their proofs both parties showed title from the United States, and their lands were described by legal subdivisions. The plaintiff did not attempt to show that the fence to which he claimed on the north and west was built upon the lines of the quarter sections as surveyed; but he insists that the court cannot know judicially that it was not so built, and that, at any rate, the plaintiff has title by prescription to the surplus, and that the defendant must be held estopped from denying that the fence was built upon the true lines.
We think the court does know judicially that, under the system adopted by the United States for surveying and marking out its public lands, a quarter section is intended to be just 40 chains square, and that whenever a claim is made that a quarter section contains a greater area, affirmative proof must be produced that the lines were so run upon the ground as to include that greater area. Here, in the absence of such proof, the court was justified in saying that the north line of section 7 was only 40 and not 43 chains north of its center.
Upon the questions of prescription and estoppel, it is claimed for the appellant that the fences were built by the owners of the lands in 1872 or 1873 upon agreed lines, and that the plaintiff's grantor occupied to those lines for about 10 years, claiming title, and he thereby acquired title by prescription; that the defendant acquiesced in the lines as fenced for the same length of time, and thereby became estopped from denying that they were the true lines. Speaking of the building of the fences, defendant testified:
"Neither Tapper [plaintiff's grantor] nor I knew where the lines were; we hunted around to find the lines; Tapper claimed that the line was where the fences were placed; we agreed that when we ascertained where the lines were, we would put the fences upon the lines; the Pearson line varied six or eight
feet from the Prentiss line; it was further south; I always claimed to the true line; the fences were not straight; there was a jog' of eight feet in one place, where the part that Tapper built joined with the part that I built; the fences were not parallel with the true line; they did not run east and west, nor north and south."
The statement further shows that "it appeared that the fences on the north side of plaintiff's land diverged all the way from one foot to twenty-two feet from an east and west line; and the fences on the west side diverged from one to eighteen feet from a north and south line."
Tapper was called as a witness for the plaintiff, and denied that anything was said between him and the defendant about changing the lines of the fences if they should afterwards ascertain that they were not correct; but the court below evidently believed the defendant, as it found in his favor on every point.
Assuming the defendant's testimony to be true, it is clear, we think, that Tapper, if he had commenced this action, could not have maintained it, either upon the ground of prescription or of estoppel, and we fail to see how the plaintiff can do what Tapper could not. Irvine v. Adler, 44 Cal. 559. When the plaintiff purchased, the deed which he received described the land by government quarter sections, and this remained so until the day before this action was commenced, when he took a new deed conveying to him all the land which was in his grantor's possession prior to the date of the first deed. But when this deed was received, a part of the fence had been removed, and the plaintiff knew of defendant's claim.
Counsel for appellant cite, in support of their views, Sneed v. Osborn, 25 Cal. 626; Columbet v. Pacheco, 48 Cal. 397; Moyle v. Connolly, 50 Cal. 295; Biggins v. Champlin, 59 Cal. 113; Cooper v. Vierra, Id. 282; Johnson v. Brown, 63 Cal. 391; but none of these cases are in point here. They hold, as was said in Johnson v. Brown, that "where owners of adjacent parcels of land have occupied, adversely to each other for more than five years, their respective tracks by a division line, which each has recognized and acquiesced in as the true line during all of that time, either is estopped from afterwards questioning it as the true line." But here, as the court finds: "The line of said fences was never settled and agreed upon by defendant and plaintiff, or his grantors, as the true and correct boundary line of their respective tracts of land."
It is not necessary to notice the other points. We think the judgment and order should be affirmed.
We concur: SEARLS, C.; FOOTE, C.
BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.
Acquiescence in boundary line. See Sharp v. Blankenship, 7 Pac. Rep. 818, and note.