Argument for Respondent.

The wife surely can stand in no better position in respect to her separate property than other people. The most that can be claimed is that her rights in regard to property are the same as the husband's.

In this extreme view of the case in favor of the wife, how does the law stand? If an estate be purchased in the name of one person and the consideration-money belong to or be paid by another, a trust results therefrom, and the former thereby becomes a trustee for the latter. (1 Saunders on Uses and Trusts, 352, and cases cited in note a.)

So if a partner buys land in his own name with the partnership funds. In all such cases, although the legal title is in the grantee named in the deed, yet in equity the estate belongs to the party whose funds purchased it. The legal title then being in the community in this case, notwithstand- . ing in equity the estate belonged to the wife, the husband possessed the right to dispose of the same. (See the Statutes and cases cited from our State Reports.)

The estate being, however, as between them, subject to the trust or equitable interest in favor of the wife, all persons who should purchase from the husband with notice of such trust or interest, would hold the estate subject to said trust the same as the husband held it. On the other hand, the law is equally clear and without exception that one who should purchase of the husband for a valuable consideration without notice, would hold the estate discharged of the trust or equitable claim of the wife. (1 Saunders on Uses and Trusts, 351, star page; Dart. on Vendors [40] and Purchasers, 390; star page; *1 Story's Eq. Juris. 396, Sec. 410; 1 Greenleaf's Cruise, 371, Sec. 88; Willard's Eq. Juris. 248, 249; Somes v. Brewer, 2 Pick. 184.)

A. & H. C. Campbell, for Respondent.

We contend, that while a deed to a married woman for a valuable consideration expressed is prima facie evidence of common property (Smith v. Smith, 12 Cal. 224; Mott v. Smith, 16 Cal. 557; Meyer v. Kinzer, 12 Cal. 254), that it is

Opinion of the Court-Sawyer, J.

only prima facie so, and like any other presumption, may be rebutted by evidence fully and clearly proving that the consideration paid was the separate property of the wife. The burden of proof rests on the wife.

The law allows a wife separate property. She has the deed. It may be her own, it may be common property. A purchaser from the husband is presumed to know the law. He is bound to know the husband's alleged title; and in this case it is of record through deed to the wife. The question of ownership is an open one, and he is put on his guard and bound to inquire. If he neglect to inquire, he takes the risk and must abide the result. He may collude with a knavish husband to cheat the wife, or he may shut his eyes and purchase in a blind stupidity, and call it good faith. In neither case will the law aid him to deprive the wife of that which the same law confirms to her. Vigilantibus non, etc.

Mr. Justice Story (1 Story's Eq. Jur., Sec. 403) says: "It is uniformly held that the registration of a conveyance operates as constructive notice to all subsequent purchasers of any estate legal or equitable in the same property."

And in Section 400: "Whatever is sufficient to put a party upon inquiry (that is, whatever has a reasonable certainty as to time, place, circumstances, and persons) is in equity held to be good notice to bind him.”

Here the plaintiff had notice of this deed by the record. It gives time-during the marital relation; circumstancesthe payment of the consideration by some one; and persons--a married woman and her husband. He should have inquired.

*In confirmation of these views we refer to the fol- [41] lowing cases, some of which are cited with approval: Smith v. Smith, 1 Tex. 354; Pich v. Willard, 7 Tex. 13; Ward v. Wheeler, 7 Tex. 6; Love v. Robertson, 8 Tex. 242.

By the Court, SAWYER, J.:

On the 13th of November, 1856, the premises described in the complaint, for a consideration expressed in the deed

Opinion of the Court--Sawyer, J.

of $3000, were conveyed by one George W. Brown to the defendant, Jane E. Fuller, who was then the wife of Silas Fuller. The purchase-money was paid out of funds belonging to the separate estate of Mrs. Fuller. On the third day of November, 1859, Silas Fuller, at that time the husband of defendant, Jane E. Fuller (but who was very soon afterward separated from her by a decree of divorce), executed a conveyance of said premises to L. L. Lawrence. Said Lawrence, on the 11th of August, 1860, conveyed to defendant Summers. These deeds were regularly acknowledged and recorded. 'Both Lawrence and Summers took their respective conveyances with actual knowledge of the fact that the consideration of the conveyance from Brown to defendant, Jane E. Fuller, was paid out of the separate estate of Mrs. Fuller. On the 15th of June, 1861, defendant Summers executed the mortgage in suit to one Alexander G. Ramsdell, to secure the note set out in the complaint, which note and mortgage were afterward assigned to plaintiff. There is nothing, other than the record of the deed from Brown to Jane E. Fuller, to show that plaintiff, or his assignor, the mortgagee in said mortgage, had notice at the time of the execution and assignment respectively of said mortgage, that Mrs. Fuller claimed the land, or that the purchase-money was paid to Brown out of her separate estate. Subsequent to the execution of the mortgage, the defendant Jane E. Fuller, in an action instituted for that purpose against defendant Summers, recovered the premises in question. Plaintiff brought this action to foreclose the said mortgage, making Mrs. Fuller a party defendant. *The defendant Jane E. Fuller, in her answer, set up her title as aforesaid, alleging plaintiff's mortgage to be a cloud upon it, and asking, as affirmative relief, that the said mortgage be declared null and void as against her, and that the same be set aside, and be removed as a cloud on her title to said premises. The facts having been found upon the trial as herein stated, a judgment was entered in accordance with the prayer of the answer of defendant, Jane E. Fuller; and from that portion of the judgment this appeal is taken.

[42]

124 Cal. 218.

Opinion of the Court--Sawyer, J.

Conceding Mrs. Fuller to have a valid title as against the plaintiff's mortgage, there can be no doubt that the mortgage is a cloud upon it, which will be removed, within the principle of the case of Pixley v. Huggins (15 Cal. 130), and numerous other cases. Property purchased during coverture with funds which constitute a part of the separate estate of the wife, will also be her separate estate. Such a transaction would only be changing the form of the property, which is already held as separate estate, without in any degree affecting its character as separate property.

In Houston v. Curl (8 Tex. 242), the Court say: "It is the settled doctrine and law that property purchased during the marriage, whether the conveyance be made to the husband or wife separately, or to them jointly, is presumed to belong to the community. This presumption may be rebutted by clear and satisfactory proof that the purchase was made with the separate funds of either husband or wife-in which case it remains the separate property of the party whose money was employed in the acquisition." (See, also, Meyer v. Kinzer, 12 Cal. 252.)

The power to change the form of the investment, without impairing the right of the wife, is absolutely essential to the full beneficial enjoyment of her separate estate.

A presumption arises from a conveyance to a married woman upon a money consideration that the property conveyed is common property. But this is only a presumption of law arising from the fact, that a purchase has been made during coverture, and the real character of the transaction may be shown. It is much easier for the party purchasing *land to show, affirmatively, that the funds [43] used are separate property of the party purchasing, than for others interested to show negatively that they were not. The evidence is peculiarly within the knowledge and control of such party. For these and other reasons, when the fact is required to be proved, the law throws the burden of identifying the funds as a part of the separate estate upon the party claiming the benefit of such estate.

In this case it was shown to the satisfaction of the Court,

83

Cal. 529.

Opinion of the Court-Sawyer, J.

that the premises in question were purchased with funds be-
longing to the separate estate of the wife. They became,
therefore, in fact, her separate property. The conveyance
was upon its face to the wife. The apparent record title
was in her, and not in her husband, Silas Fuller. The deed
is sufficient in law to convey a title to the wife, but whether
it did, in fact, convey an estate in common, or a separate
estate, manifestly depended upon a fact dehors the deed.
Ostensibly the intent was to vest the title in the grantee
named, Jane E. Fuller, It did not appear on the face of
the deed that the grantee was a married woman—or that,
being a married woman, the consideration was paid out of
her separate estate. The deed, then, so far as shown on its
face, might have conveyed a title absolute to a feme sole; a
separate estate to a feme covert; or an estate in common to
husband and wife. Upon the best view for plaintiff, the
deed upon its face was equivocal. But it afforded to all
persons seeking to acquire title under it a clue to the title,
which they were bound to pursue, or suffer the consequences
of their laches. The grantee is a woman.
The presumption
of law is that she is sole, and prima facie a conveyance from
her would pass the title. But she may be married, and her
deed may not pass the title. The fact as to whether she is
married or single, all parties dealing with the land must
ascertain, or omit to do so at their peril. So, also, if a
grantee of a conveyance for a money consideration is a mar-
ried woman at the date of the conveyance, prima facie a con-
veyance by the husband in his own name, of the land so

conveyed to the wife, will be presumed to pass the [44] title; but *in fact it may not, for the reason that the land may still be the separate property of the wife, which he has no power to convey. And in such cases, as in the case last mentioned, all parties claiming title through the husband to lands, the title to which never stood in his name, must ascertain, at their peril, whether he did in fact have the power to convey.

The record title in this case was notice to all the world that the land in dispute might be the separate property of