LABISH v. HARDY

LABISH v. HARDY. No. 12,479; December 27, 1889. 23 Pac. 123. Community Property.—A Husband and Wife Occupied a Tract of land belonging to the United States from 1847 until 1856, when the wife died. The husband continued to occupy the land until 1871, when he received a deed to it from the town of Santa Cruz under act of Congress of July 23, 1866. Held, that the occupation by the husband and wife during her life did not operate to render the land community property, or vest the wife with any ownership whatever. Following Labish v. Hardy, 77 Cal. 327, 19 Pac. 531. Community Property.—In an Action by a Daughter of the First marriage against a second wife, to whom the land had been deeded, to recover the interest claimed by plaintiff as heir of her deceased mother, the deed will not be vacated on the ground that it was a gift, and the husband was indebted to plaintiff, and did not leave sufficient property to pay her. APPEAL from Superior Court, Santa Cruz County; F. J. McCann, Judge. Action by Isabella Labish against Jane Hardy to set aside a deed to quiet title to certain premises in the city of Santa Cruz. In 1847, plaintiff’s parents went into possession of the land in dispute, which was then public land of the United States, and continued to occupy it, together with their children, as their home, until the death of plaintiff’s mother, which occurred in June, 1856, at which time plaintiff was seven years old. After the death of plaintiff’s mother, the father of plaintiff continued to occupy said premises as his home until his death, in 1883. In June, 1860, plaintiff’s father married the defendant. In May, 1871, plaintiff’s father took a deed for the premises from the corporate authorities of the town of Santa Cruz, under the act of Congress approved July 23, 1866, entitled “An act to quiet title to certain lands within the corporate limits of the city of Benicia and the town of Santa Cruz”; said premises then being within the corporate limits of the town of Santa Cruz and public lands of the United States. On August 8, 1881, plaintiff’s father made a deed of gift of the premises to the defendant. This deed was recorded, but is alleged not to have been properly acknowledged when this action was commenced. At the time this deed was made, the premises constituted all the property of plaintiff’s father, and he never afterward acquired any property. The defendant claims the premises under this deed. This action was commenced August 7, 1885. Plaintiff alleged that before that time she acquired and then owned any interest in said premises that might have descended from her mother; that after his first marriage W. H. Hardy received property and money in trust for the plaintiff upon the understanding and express promise on his part to invest and pay over the proceeds thereof to the children of his first wife, plaintiff being one of those children; that this trust was never repudiated by him, but was never carried out, and that at the time of his death he owed several hundred dollars to plaintiff on account of said trust property; that plaintiff did not lmow of the deed of gift to defendant until after her father’s death, and did not know until then that her father had not left sufficient property to pay her demand, exclusive of said real property. These and other pertinent facts were set up in the complaint and amended complaint. The defendant demurred and the demurrer was sustained. The plaintiff declining to further amend, judgment of dismissal was entered; and plaintiff appeals from such judgment. W. D. Storey for appellant; Henry P. Bowie for respondent. [MAJORITY — PER CURIAM.] PER CURIAM. We have examined the record in this case and find no error in it. The ease is determined by Labish v. Hardy, 77 Cal. 327, 19 Pac. 531. Judgment affirmed.