Arizona citizen. [volume] (Tucson, Pima County, A.T. [i.e. Ariz.]) 1870-1880, 1876-03-18

n eratien Is common property, as nC
necessarily involved in this case,
: it appears, as we think 1t does froI
the transcript, that evidence was OF
fered, and ruled out, which would g
strangely to support the theory tina
, the property was the separate propert
of Anna G. Wofenden, at the time @
\ the conveyance by her to the plaintiff
: and appellant herein. For sdmittin;
/ the legal presumption to be as ebov
E stated, such presumption may be re
butted and overcome by proof that tn
g property was purchased with the sepa
| rate funds of the wife.
.. II is however insisted, by counsel TO
the respondent, that DO evidence wa
offered by the plaintiff, showing Oh
tending TO show that the property il
controversy was the separate property
of Anna c. Woffenden. Passing the
question as to the order in which this
proof should have been offered, was
/ such evidence offered at ali! On the
examination of the witness Chsrsu-
leau, (see folio 10 of transcript the
witness was asked, Ito whom was the
sale of the ranches communicated,
when the same was being IN tde:" The
statement goes on and reads, 1.-The Of
fer upon the question was to prove
that when the sale vas made by An
ma G. Wotfenden, to the plaintiff, of
the ranches III contest, the defendant
was informed of it by her, In presence
of the plaintiff; that be did not then
question Mrs. Woffenden' s ownership,
nor her right to dispose of the prop
erty in question, but allowed the con-
tract to proceed, and the consideration
of $1,000 to be paid, without any
question or objection. The court rul-
ed that there was no deed i'll evidence,
and inquired of plaintiff counsel what
he meant by sale. Counsel answered,
that he meant contract for the con-
veYance of the property in controversy,
to be consummated, as it afterwards
was, by deed" We understand from
the transcript, as above quoted, that
upon putting the question to the wit
ness, the plaintiffs counsel offered to
prove by the witness, the matters set
out, in substance that while negotia-
tons were in progress between Mrs.
Woffenden and Charauleau, for the
sale of the ranches, the defendant was
present; that she was treating the
ranches as her separate property, and
the defendant in no manner question
ed her right so to do, but permitted the
negotiation to go on. and the plaintiff
herein to pay the purchase money, &c.
As we understand from the transcript,
the court not only sustained the OBJ
lection made by the defendants coun-
sci to the question put as leading, but
also ruled the evidence offered should
be excluded. That is, the court would
not permit the plaintiff to prove, by
the witness, the matter he offered TO
prove, had there been no objection to
the form of the question.
We have no doubt that in this the
court erred. The offer was not, by oral
testimony to establish and prove con-
tract for the conveyance of lands; it was
to show that the property being negoti-
ated was the wife's separate property,
rs evidenced by the conduct of her hus-
band, while she was negotiating the
sale thereof and treating it as her own. /
Giving full force to the legal presump-
ton contended for by the counsel for
the respondent. that the property was
common property, it might still be
shown to be the wife's separate prop
,rty. For though obtained by her by
grant and for monied consideration,
t this monied consideration was of
Ter seperate funds the property would !
% her separate property. Now when
he was 80 negotiating sale of this
bargaining it for q price,
With the view of conveying it, would
lot the fact that the husband was
resent and made no objection to the
nor in any manner ques- :
Toned her right TO the property, as S
Ter separate property, be evidence
trongly tending to show that the
property WAS her separate property,
nd obtained by her separate funds:
ne title of the property vested in her ,
y virtue of the deeds from her grant
RS, if the purchase money was of her
wn funds, if not, then the property
ecame common property. The evil
ence offered was to show that the de-
,ndant himself being present, assent
to her treating the property as her
'parate property, which it is assumed
3 would not have done had the prop
'ty been purchased with his separate
Inds, or with the common fund. -,
Again, the plaintiff offered to prove
Y the witness Wise, (see transcript,
lilo 81, that the defendant, in 1874. o
in the witnesses presence,
ny interest in the ranches in contro-
.rsy, and expressed his discrimination
aver to return to them" The deed
ON Abrsm Moreno and Mariana i
.oreno. his wife; and from Ygnacio
obledo and Romuls Robledo, his
ife, conveyed the title of the prop 4
ty to Anna c. Woffenden, to vest in
IT as her separate property, if
lrchased by her separate funds,
herwlse to become common prop
ty. If it was common property,
e defendant certainly had an in
rest in it; was not his disclaimer of BIT
~ interest in the property evidence
nding to show that the property was
e separate property of the wife.
he husband has control of the COM
on property, and if these lands had
en purchased with means from the s
mnion fund. would he not have 5e
lown 1t, and would he have dis
aimed any interest in them? Had al
e defendant paid for the property ia
t OF his own means, or out of the
mmon fund, would be likely TO