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INSURANCE – RIGHT OF ASSURED TO RESCIND CONTRACT OF INSURANCE. A contract of insurance may be avoided by the assured, when he was induced to enter into it through untrue representations of the agent of the company: Nero Era Life Ass'n v. Weigle, 128 Pa. St. 577; Norton v. Gleason, 61 Vt. €74. But in American Steam Boiler Ins. Co. v. Wilder, 39 Minn. 350, the company's agent having knowingly made the false assertion that the “lifo clause " in his policy was not contained in policies issued by rival companies, but having invited defendant to examine and compare the two contracts, jeaving his blank with him for that purpose, it was decided that defendant, having made application for a policy, could not refuse to accept the policy or rescind his contract on the ground of the false statement of the agent. A policy may stipulate that it is subject to cancellation at any time by the com. pany on refunding the ratable proportion of the premium for the time unos. pired: Bingham v. Insurance Co., 74 Wis. 498.





within which the statuto declares it may be issued is in excess of the jurisdiction of the courte

Garber, Boalt, and Bishop, and J. P. Phelan, for the petitioner.

T. 2. Blakeman, for the respondents

PATERSON, J. Review. On August 3, 1883, a decree of par. tition of certain real estate was entered in the superior court, probate department, of the city and county of San Francisco. Mr. Wackenreuder, who performed the duty of commissioner in making the partition, was, by the decree, allowed a fee of $480 for his services and expenses incurred. It was provided in the decree that the sums 80 allowed to Wackenreuder, and "amounting to $480, be and the same are hereby charged and made a lien upon the land and premises partitioned.” In July, 1888, the executors of Wackenreuder procured from the court an order of sale to satisfy the claim, with interest thereon from the date of the decree. On August 20, 1889, the court made an order requiring the executors of Wackenreuder to show cause why the order of sale should not be set aside, and an order was entered staying all proceedings. On May 15, 1890, the order under review herein granting an execution was made. It vacates the order to show cause, and the stay order, procured by the distributees of Ramirez's estate, August 20, 1889, finds the amount which had been paid on account of fees and expenses, the amount still unpaid, and directs execution therefor against the respective shares partitioned to the several parties, and made liable by the provisions of the decree. That portion of the decree which provides for the payment to Wackenreuder of $480 is, in effect, a judgment in his favor for that sum. It is a money judgment, and if valid, one upon which he would have been entitled to an execution, if the probate court had the power to issue one at all, which is doubtful.

The judgment, being one " for the recovery of money,” 80 far as Wackenreuder was interested in it, could not be enforced by execution after the lapse of five years from the entry thereof: Code Civ. Proc., secs. 681, 685; Dorland v. Hanson, 81 Cal. 202; 15 Am. St. Rep. 44. We think that Wackenreuder was “the party in whose favor judgment was given," within the meaning of the word "party" as used in section 681 of the Code of Civil Procedure. The order staying proceedings did not operate to suspend the running of the statute: Solomon v. Maguire, 29 Cal. 237; Dorland v. Hanson, 81 Cal. 202; 15 Am. St. Rep. 44. The order under review was in excess of the jurisdiction of the court. The court had no power to enforce the same after the lapse of five years. It had ceased to be operative (White v. Clark, 8 Cal. 513), assuming that the probate court had the power to declare a lien and to award an execution in satisfaction thereof,- a question we deem it unnecessary to determine, in view of what has been said on the other point raised.

The order is appulled.

LIMITATION - EXECUTION. - Section 681 of the Code of Civil Procedure of California provides that “the party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execu. tion issued for its enforcement." This section is construed in Dorland v, Hanson, 81 Cal. 202, 18 Am. St. Rep. 44, and Jacks V. Johnston, 86 Cal. 384; post, p. 60.


(88 CALIFORNIA, 286.) HUSBAND AND W173 - SEPARATE PROPERTY. — Il a married woman par.

chases property which is, at the time, intended to be her separate ostato, and her husband loans her money to be used in making a partial payment, he does not, nor does the community, acquire an interest in the property proportionate to the moneys so loaned by him, nor to any other extent. He is simply a creditor of bis wife to the amount of the

loan. HUSBAND AND W17- SEPARATE ESTATE — If a wife parchases property,

paying therefor partly out of her separate estate and partly with moneys borrowed on the faith of her existing property, and secured by * mortgage thereon, in which and the note which it is given to secure

the husband also joins, the whole purchase is her separate estate. HUSBAND AND Win - SEPARATE ESTATE. — Where property is purchased

us the separate estate of a married woman, and intended, at the time of parchaso, both by her and her husband, to be hers, the fact that he subsequently, without her knowledge or consent, paid an unpaid balance of the purchasо price cannot prevent the entire property from being her

separate ostate HUSBAND AND WOB-SEPARATE ESTATE. When the question of the

effect of a conveyance to a married woman is involved, the intention of the parties is of paramount importance; and if, as between the husband and wife, it was intended to vest the property in her as her separate estate, the courts will respect that intention and declare the property to be hers, though but for such intention the title would vest in the com.

munity. L. L. Boone, and Hunsaker and Britt, for the appellant. Capps and Montgomery, for the respondent.

WORKS, J. This is an action brought by a wife against her husband to recover upon a promissory note, and for money had and received. The defendant set up a counterclaim for money loaned. The court below found in favor of the plaintiff on the note, and for a part of the amount claimed by her for money had and received, and allowed the defendant a part of his counterclaim. The plaintiff appeals on the judgment roll. There is no controversy as to the correctness of the finding and judgment upon the note and the counterclaim. The contest is as to the amount allowed the plaintiff for money had and received. The real matter of controversy is as to the character of certain moneys claimed by the wife, whether the same was her separate estate or community property.

The facts, as disclosed by the findings, are these, in substance: That certain real estate was sold to the plaintiff for $4,750, and a deed therefor executed to her; that it was the intention and expectation of the parties that the consideration therefor should be paid by the plaintiff out of her separate estate, and that thereupon the property should be her separate property; that on the day said real estate was purchased, the defendant loaned the plaintiff $600, which sum was by the defendant, at the instance of the plaintiff, paid to the party who conveyed said property to the plaintiff, and, as a part of the consideration therefor, that the plaintiff promised to repay said sum to defendant, and defendant expected the same to be paid out of her separate property; that the plaintiff at that time had separate property of the value of between $7,200 and $9,200; that upon the payment of said $600, a deed for the property was delivered in escrow till the balance of the purchase price should be paid; that, afterwards, the plaintiff paid upon the property, of her separate funde, $2,000; that said deed contained a covenant on the part of the plaintiff to pay off a mortgage standing against said property for $1,000; that plaintiff and defendant borrowed $3,000, and gave their joint note therefor, and joined in a mortgage on said property to secure the payment thereof; that $2,000 of said sum was paid to the plaintiff, and $1,000 thereof applied to the payment of the mortgage for that amount, which she had covenanted to pay; that the balance of the consideration for the property purchased by the plaintiff, $1,150, was paid by the defendant out of his own separate estate, without the request or knowledge of the plaintiff, and thereupon the deed was taken out of escrow and recorded; that afterwards said property was sold for $6,500. The purchaser assumed the three thousand dollars, and paid the balAnce in cash at divers times to the defendant, no part of which bas been paid to the plaintiff.

The question presented under these findings is, How much of the money thus received, and not paid over to the plaintiff, was her separate estate? and how much of it, if any, was community property? The court below held, as a conclusion of law, that the plaintiff wis entitled to recover of the defendant, on account of the moneys thus received, and not paid over, $933.33, and, as against this sum, allowed the defendant an offset of $160 on an account stated, and the sum of $594.40 for money loaned. By what rule of law or what process of reasoning the court found that for three thousand five hundred dollars, collected and appropriated by the defendant, he was only bound to pay less than one third of that sum, we

are not informed by the findings and conclusions of law.

We suppose, however, that the court came to the conclusion that all of the money realized by the defendant from the land purchased by the plaintiff was community property, except what was actually paid by her therefor out of her separate property, and the proportionate increase in the value of the land at the time it was sold by her. The position taken by the respondent in this court is, that as to the six hundred dollars loaned to the plaintiff by the defendant to make the first payment, they were dealing with each other in a fiduciary capacity, and as she gave no mortgage on the property to secure its repayment, it was, in effect, a payment made by the defendant on the land, and gave him an interest therein to that extent. But it must be remembered that this is a question wholly between the husband and wife; that the court finds that he loaned her the money, to be repaid out of her separate estate; and that such was the intention of the parties. The effect of the respondent's position is to convert this loan of money by the defendant into an investment, on his individual account, in real estate, against the express understanding and intention of the parties. It is, in effect, to say that by loaning to the wife he could hold her liable to bim on her contract to repay him the money loaned, and yet hold an interest in the land to the extent of such loan, with the right to sell the same without her consent; or, putting it differently, the loan of the defendant to his wife was a loan to himself, in spite of their agreement to the contrary, and he could recover from her the amount loaned, - for that was their contract, - and yet hold an interest in the land to the same extent, because, according to the respondent's contention, that was the legal effect of his making the payment without taking a mortgage on the land to secure its repayment. Such a construction of the law would certainly not offer great inducements for a married woman to call upon her husband for aid where her separate property was in danger.

The case of Schuyler v. Broughton, 70 Cal. 282, gives some countenance to the respondent's claim, to the extent that it is there held that money borrowed by a married woman to invest in real estate, during her marriage, is community property, unless it be borrowed by her upon the faith of her existing separate property, which she mortgages or pledges as security for its payment, or against which her contract may be enforced. That part of the doctrine announced in the case cited

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