Arizona weekly citizen., 1883-02-18
LEGAL LORE.
Opinions or Judge ". W. Hoover of the
 Eirsi JudiciaI District Court
VoFendeu ys. Charaleau.

OFinions of Judge ". W. Hoover "i ihe
 Firsi Judicial District Court
 Wofendeu ys Charaleau.
 ! This case Is upon demurrer. He | first point arises upon the uyerment Of the complaint; That defeudant ! Charaleau ecaived from plaintiff Anna (. WOfenden a deed to certain real | property averred to have been purchased with community funds, but the deeds Co ! which were executed to her for a money consideration on their face. That inc [ deed to Charaleau was eXecuted prI0T go ana waa duly recorded July 3-h. lo,5. and bore upon its face & nominal cousl l. | erati0n of S2sJOO, bat m fact that Ho l consideration was paid therefor and | that the same was made with intent Co | defraud plaintiff of his interest ID sad 1 realty, aud that said defendant Clafa- ] leau entered into and took possession ! Of said land and premises under and by virtue of said deed and by uu nther clam ot title whatsoever, aLt continues ] in possession of sgIi lands and premls- es.' The complaint further ayers that l bis acts under sad deed was as an agent for Anna C. N offender.
 The point in this case k whether said complaint shows upon its face that tle action Is barred by the statute Llml-l- tiOns.
 AL preslmptious are by well set tied rule ot law ID those States adopting the civil law provisions relating Co com mon property during cOyerture, held to be against property ID tae wIfc's hands being other.tnan common property and while thls presumption Is not conc.u- | Ia. tackled, and gpplyinCin connection there with tue other as well established r,l. e that changing the form does not alter the nature of common property, it rs- suits that from the ayerments Oi tLe complaint lJ appears that Anna C. WOf- fenGen purchased with common funds tae real estate, aud that the realty there upon by operation of statute became subject to the sole disposition of plaII- tiff; that he permitted her Co collect the rents and profits thereof; that tle deed mentioned was executed by Anna C. NOienden to Charaleau. This deed WAS void upon its face as q conveyance of the realty as to CharaleaU, for 1t IS averred not only that this was common property. but that such conveyance WAS made without consideration and for the express purpose Of deiraudiuC plaintiff
 We now come tO a consideration of the question of whether the defsndent Charaleau can avail himself of the prov.- sions ol Section of Chapter 8 Com piled Laws 357 by passing his claim of title upon a written instrument as be- ing a conveyance of the promises' when the same Is irauduient and void, and when he was actiug as between Anna C. Wofleudeu and himself as bor agent upon @ secret trust. m fraud os plaintiffs right. The theory upon which the statute above cited goes is shat the deed shall give some color os title, ani to this point go all the decisions inter pre-inE similar statutes.
 Where tIs. question oi ma.5 li3es is raised however -ae Courts, while going c. fine extent that void deed may fer tuIs purpose give color Cf uile. See eases cI5eI Angell ou Lim. p. iJI uote, yet reserve the question oi bona iiGes and held it to De al essential tiut such entry under color Cf tide be made Iu good fgItE. Cornelius Ns. Glieul I Dutch, N. .. l Wooas vs. r.gHuE l Geo. liu. Ld-erton v-. r4rs, H is., l2I. And Iu Angel on lil. -.9 tls general rule is Geciared "An entry l- .y color Dt fIt.a when It l5 made uuCtra bona tite -.s uut a UretaLaeI c.liu gI title existing D. another. Defendants urge that t. t.1uCh tbe Cont arrives at the conclusion anovr indicated yet That there wGs a1 actual adverse Ua--.--lal when as PosseSslo TeIIs is sGii. -i-E;.y shown by tua complaint. Co sc; as Ea-.
 Eye-g presumption ls to be made i1 favor u- tle true owner and a bare pos session ls evidence oi r.o more than the fa-- TO- r-esart occupation by uylt Tor tae iay never presumes a -rsl-.' Al- gell on Linn. p. 5SO
 1t Is the DccuuatIOu W4.h Il-g-- tI clalm against the t--e owner vllrl renders the e.try and p0ssrs-isa ai- verse. Id. D. 3>,. ILe ave-nelt Ds tle complaint show tI.t tie cuJry aud yu-- sess-ou were with lrre-.' a. glalu under the deed set forth. and under Tho principles above iala down. Che Court cannot presume tha, defendant C.ars- ieau Intended to cam except Uader culUr ot title, and such fact q it exist does not atirmltvely appear thcre-rom.
 As Co ti.r objection made t-at IiaIu- tif T;- never seized, it is answered lv the fact that the paper title imports 90 seizure and that this title was vested iu here ly tie deed Co his wife.
 As Co the objection tla: no cause ot| acjioI B. sta.ed for a recovery of rents and profits the objection cannot stand upon a general demurrer and while the complaint might be rendered. more ccr- tain yet ii is Eor fatally l-iec-ive a9aH that point.
 Thls is an ac.ill iIr partition and ,1 such action Sec. -73, Comp. Laws. g. tji, provides "Tne rights of the several par ties. plaintiffs as we'll as defendants. may be put iu Issue, tried auid=terul1si by such action i.rs. and kindred pro- visions ofrhaptHr iS above cited. ere a re-enactment oi the California ~.1fute upon thI- subject and tbe questions here raised are well settled that th.s is am action Io try tItie and the iuj-m,ut Is a bar tu ej actment by party Co tie action and that au accnu1tius between the parties may he had for rents and profits in such action.
 The iefeUdeut Charaleau is a ueces- sary and proper party defendent.
 The demurrer is Cyer-ulci and twenty days tO answer.
 WILSON ". HooyEE