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admits that the woman he lives with is his wife, that this is at least prima facie evidence that there had been a marriage contract between the parties. And when we add to this the fact that the parties had lived together as husband and wife for a long time, raised children, and held themselves out to the world as husband and wife, this ought to be pretty good proof of marriage, and all this appears in evidence.

The importance of these cases has caused me to add this much to what has been written by my associate. The orders and judgment of the court below are affirmed.

(2 Ariz. 44)




The rents, issues, and profits of a married woman's separate property are coinmunity property. Appeal from Pima; Hon. W. F. FITZGERALD, J., presiding.

F. W. Gregg and H. R. Jeffords, for appellant, Richard Woffenden.

Farley & Franklin and Alexander Campbell, for respondents, Jean Pierre Charaleau and another.

PINNEY, J. In June, 1882, appellant filed his complaint in the Pima district court, alleging that he and defendant Anna C. Woffenden were married in August, 1872, in the city of Tucson, and continued to be husband and wife until May, 1879, when they were divorced. The complaint then sets up that defendant Anna C. Woffenden acquired as community property certain lots and real property, some of this property being purchased by her in 1873, and some in 1874; and that during their marriage relation defendant Anna C. Woffenden received and appropriated to her own use the rents and profits of this real property; and that during the continuance of said marriage relation defendant Anna C. appointed defendant Jean P. Charaleau an agent to collect the rents and profits, and that since the dissolution of the marriage, defendant Charaleau has continued to collect and retain the rents and profits, but has refused, and still does refuse, to account for or pay to plaintiff any part thereof. The complaint then avers that defendant Charaleau gives out, asserts, and claims that he is the owner of the whole of the property described in complaint; that his pretense and claim is without right. Added to this is a prayer (1) for the appointment of a receiver to collect the rents and profits; (2) that defendants account to plaintiff, and pay over to him one-half of the rents and profits received from said lands since May, 1879; (3) that it be decreed that plaintiff is the owner of an undivided half interest in the lots and lands described; (4) that defendant Charaleau be forever enjoined and barred from asserting any title or claim to the same; (5) that the property de

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scribed be equally divided between plaintiff and defendant Anna C.

The answer denies that plaintiff and defendant Anna C. acquired as community property the lots and lands set forth in complaint, and alleges that the same was bought and paid for by her with moneys possessed by her prior to her marriage with plaintiff; denies that defendant Anna C. received and appropriated to her own use and benefit any community property; denies that she appointed defendant Charaleau agent to collect rents and profits.

The separate answer of defendant Charaleau sets forth that he is the owner, in good faith, and for a valuable consideration, of the real estate described in complaint; that he purchased the same in June, 1875, and immediately entered into exclusive possession of the same.

At the trial in the court below the plaintiff proved that the defendant Anna C. Woffenden purchased the various parcels of land mentioned in the complaint with moneys which she collected from rents of her separate property, some of which she had before her marriage, and some she bought afterwards. The plaintiff then offered to prove that all the lands mentioned in complaint were purchased during coverture by Anna C. Woffenden from the rents, issues, and profits of her separate estate. This was objected to, and objection sustained by the court, for the reason that this court had in the case of Charauleau v. W’offenden, 1 Ariz. 243, decided that the rents and profits of a married woman were her own separate property, and not the common property of husband and wife. And the question is here again squarely presented: Do the rents, issues, and profits of a married woman's separate property become solely vested in her, or is the same community property ?

If the legislature has by statute fixed the rights of husband and wife in plain and unambiguous language, then there is no room left for a construction by the court. Section 1, c. 32, provides :

“All property, both real and personal, of the wife owned by her before marriage, and that acquired afterwards by gift, devise, etc., shall be her separate property.”

Section 6 of that chapter provides :

“The husband shall have the management and control of the separate property of wife during the continuance of the marriage, but no sale or other alienation of any part of such property can be made, etc., unless by an instrument in writing, signed by the husband and wife, and acknowledged by her upon an examination separate and apart from her husband.”

Section 9 of the same chapter provides :

“The husband shall have the entire management and control of the common property, with the like absolute power of disposition as to his own separate estate. And the rents and profits of the separate estate of either husband or wife shall be deemed common property, unless, in the case of the separate property of the wife, it shall be provided by the terms of the instrument whereby such property may have been bequeathed, devised, or given to her that the rents and profits of such property shall belong to the wife, and shall not be liable for the debts of the husband."

In 1871 an act relating to the separate property of married women was passed and approved, as follows:

“Section 1. Married women of the age of twenty-one years and upwards shall have the sole and exclusive control of their separate property, and may convey and transfer the lands, or any estate or interest therein, vested in or held by them in their own right, and without being joined by her husband in such conveyance, as fully and perfectly as they might do if unmarried..

“Sec. 2. All acts and parts of acts so far as they conflict with the provisions of this act are hereby repealed.”

This act repeals section 1, supra, in so far as the same is in conflict therewith. The provisions of the act are clear and plain. The wife shall have full power to sell, etc., without joining her husband in the conveyance. It is perfectly clear, then, that under this law the wife had the right to sell and convey the property in dispute. It is also clear under section 9, supra, that the rents and profits of either husband or wife are common property. By that act it is provided that the wife shall have the sole and exclusive control of her separate property, with power to sell, etc.; nothing is said about the rents and profits, while the other portion of the statute stands in full force, making the rents and profits common property. True, the wife has the right to sell and convey; but if she does not desire to do that, and prefers to retain, hold on to, and rent the same, then the rents received by her become common property, and the same could be reached by a creditor, or by the husband himself, if the action was brought in the proper time and manner. Should she use this common money received for rents and profits, an action would lie for money had and received, and possibly, under a proper case, the husband might maintain an action against her for an interest in real estate purchased by her with this common money.

The record in this case shows defendant Charaleau to have been a bona fide purchaser of all the real estate in dispute, and whatever right of action the husband might have had against the wife, clear it is that the title of defendant Charaleau cannot be disturbed. The case of Charauleau v. Woffenden, 1 Ariz. 243, in so far as the same conflicts with this decision, is overruled. For the reasons given, the judgment and order appealed from are affirmed.

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HOWARD, C. J. I concur. The construction given by Mr. Justice PINNEY to the statute referred to seems to be in accord with the views of the legislature of 1885, which body changed and settled the law for the future by enacting (act No. 5, p. 5) that “the rents, issues, and profits of the husband's separate property shall be his separate property, and the rents, issues, and profits of the wife's separate property shall be lier separate property.” It is reasonable to presume that this legislation came from the conviction that the former statute did not express the legislative intent to the same purpose and effect.



Agreement for sale and delivery of water construed, and held, that plaintiff, in pursuance of the contract to deliver the water, was bound to maintain a ditch to a place specified at such an elevation that the water might be conducted therefrom to the defendant's mine, and that the defendant was not bound to put himself in a position to receive such water, so that it would not flow to


Where contradictory instructions are given, and an error of law committed, such error must be excepted to at the time, or it cannot be considered on appeal. Department 2. Appeal from superior court, Sierra county. S. B. Davidson, J.S. Belcher, and T. C. Van Ness, for appellant. Van Clief & Gier, for respondent.

THORNTON, J. By a deed bearing date the fifteenth of February, 1871, the Sears Union Water Company, a corporation organized under the laws of the state of California, sold and conveyed to W. R. Morgan and Timothy Donahue, together with other property, the Trainor ditch, situate in Table Rock and Sears township, county of Sierra and state aforesaid. The ditch is described in the deed aforesaid as conveying the water of Slate creek and its tributaries to St. Louis, Sierra county, with all its ravines, dams, flumes, reservoirs, and water privileges belonging and appertaining thereto, and also all their interest in the water known as “tail-water," flowing from Table Rock township, in the county above named. On the thirtieth of September, 1880, the above-named Morgan and Donahue, parties of the first part, entered into an agreement in writing with defendant Baker, party of the second part. (Note. Daniel Titus was also a party of the second part with Baker, but as he was let out of the contract by a subsequent agreement, and never had any interest in the action, when the party of the second part is hereinafter mentioned defendant Baker is alone referred to.)

By the agreement just mentioned the parties of the first part, for a consideration expressed therein, agreed with the party of the second part (who, at the date above mentioned, claimed to own and was engaged in mining for gold on certain placer mining claims situate near Saw-mill ravine, in Sierra county, in this state, known as the “Pioneer mine,” operating the mine by the hydraulic process, and requiring for such operation large quantities of water) to construct and at all times maintain at their own expense a ditch of sufficient size and capacity to carry and convey all the waters of the parties of the first part from St. Louis, in the county abore named, to a point on Saw-mill ravine. The ditch so to be constructed was to connect with, take, and receive the water from all the ditches then owned or con

v. 8P, no.5—20

trolled by the parties of the first part at or near St. Louis, and to convey it to a point or place on Saw-mill ravine, at a sufficient height or elevation so that the water might be conducted therefrom to the new reservoir on the Pioneer mine, and to deliver continuously all this water through said ditch to Baker at the point above referred to on the Saw-mill ravine.

It was further agreed that the ditch was to be kept to its full capacity, unless prevented by heavy snows, with the exercise of due diligence, at all seasons of the year as long as the parties of the first part should have sufficient water to fill it, and at all other times to supply Baker with all the water belonging to them.

It was declared in the agreement that its object and purpose was to sell and deliver to Baker at the point or place above mentioned on the Saw-mill ravine all the water from the ditches owned or controlled by the parties of the first part at or near St. Louis, which water Baker desired to use on the Pioneer mine in working and developing it.

By a subsequent agreement, supplementary to and in extension of the foregoing, between the same parties, bearing date of the third of January, 1882, and to take effect on the thirtieth of September following, until which the provisions of the former agreement as to the furnishing of water were to remain in force, the parties of the first part agreed to furnish to the party of the second part, defendant Baker, in addition to the water to be furnished under the former agreement, the water from the Sackett's Gulch ditch, the Emery and Pfarr ditch, the William Stahl ditch, and the S. McCrory ditch.

In this latter agreement the parties declare the intent and purpose of it to be that the parties of the first part shall, when required for the use of the Pioneer mine, furnish to Baker, all the water they now have in the county of Sierra to the present capacity of their ditches, for the exclusive use of Baker, from and after the thirtieth of September, 1882, until the thirtieth of September, 1885, and in the mean time, and until the thirtieth of September, 1882, they are to furnish Baker water under the former agreement. In consideration of the furnishing of said water, Baker agreed to pay Morgan and Donahue annually, after the thirtieth of September, 1882, the sum of $16,000 out of the first proceeds of the Pioneer mine.

This other provision in the contract should also be mentioned. It is as follows:

"It is further understood and agreed that the so-called tail-water from Table Mountain township which is furnished by the Sears Union Water Ditch is a portion of the water to be furnished under this contract, and that in case of failure of the party of the first part to procure said tail-water during the period of this contract, that a reasonable deduction shall be made on account of such failure, to be mutually agreed upon between the parties hereto,” etc.

Pursuant to the first agreement, Morgan and Donahue constructed the ditch required to convey the water contracted to be delivered for

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