The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-30
His Father and Mother Seek
to Recover Valuable
Stock.
THE PRESENT WAS INVALID.
Shares of Paauhua Plantation Com
pany Worth Half a Million
Dollars.


day filed brief on demurrer in Judge
Stacks department of the Superior Court.
This is an action brought by the plain
tiffs as husband and wife to recover from
the defendant 5000 shares of the stock of
the Paauhua plantation, part of their COM
munity property, which they allege he un-
lawfully detains from them.
The defendants asserted title rests upon
a gift from the plaintiff, Claus Spreckels.
On the other hand, it is claimed that this
gift is invalid because, though made by
the husband after the passage of the act of
March 81, 1891, it was not sanctioned by
the consent of the wife.
The main point for discussion arises
from divergence of views upon the con-
stitutionality and operation of this statute.
The first contention of the defendant is
that the statute of 1891, if made applicable
to the facts in this case, is retroactive and
unconstitutional.
In reply it is contended that the statute,
though it operates upon the disposition by
gilt OF community property acquired be-
fore its passage, is not retroactive. The
subject matter of the act is the regulation
of gifts of community property. 1t only
affects dispositions thereafter to be made.
If it had said that gifts of community
property made by husband before its
passage, without the consent of his wife,
should be invalid it would have been
retroactive.
But it is obviously intended to apply
only to gifts made after its passage and
then, of course, is not retroactive. At all
events it is sufficient to say upon this
point that here the gift was made after the
passage of the act and the question of
what the effect of the amendment would
he 81
When the claim is made that the statute
of 1891 is unconstitutional in that it de-
prives the husband of vested right the
argument assumes, as its foundation, that
the husband had before the passage of the
act the vested right to dispose of COM
munity property by gift as he might of
his own separate property, and that conse-
quently the enactment which makes his
power of disposition subject to the consent
of his wife is deprivation of that right.
The answer to the contention is found in
the fact that the husband never has had
no more before than since the passage of
the act-the power of disposing of the
community property at his pleasure by
gift as be could of his separate estate;
and that, besides, if he had such power it
was derived wholly from the Legislature,
and the power which conferred it may
take it away.
The brief quotes decisions and authori-
ties at great length on these propositions.
The next contention of defendant is
that there is a misioinder of parties, in
that the wife cannot in an action OF this
kind be joined as plaintiff.
The brief reviews the contention, taking
the ground that the statute of 1891 was
passed TO protect not husbands but wives.
1t was the spoliation of the wifes right by
the husband which the Legislature was
seeking to check and prevent. 1t placed
in the hands of the wife the shield for her
own protection by giving her the means of
herself the community property.
ITO be told that, ii, in plain and mani
fest violation of the language and intent of
the statute, the husband shall give away
the community property, the wife cannot
invoke the protection of the courts to avert
or redress the wrong-to say that the right
to seek redress, in such a case, is lodged
exclusively in the husbands hands, and
that the Legislature intended that the
protection of the wife's rights should be
confded solely TO the one against whose
wrong that protection is needed, would,
indeed, make the promise of the law-giver
as false as dicer's oaths-a rhapsody of
words. :"
The third contention of the defendant is
that the plaintiffs have no standing in a
court of equity, because their remedy at
law is adequate and complete.
In reply to this plaintiffs argue that the
stock in question, though community
property, had been issued in the name of
Claus Spreckels and he appeared upon the
books of the corporation as the owner
thereof. The transfer of the stock to the
defendant was made by delivering these
certificates Endorsed in blank with the
name and signature of Claus Spreckels.
1.-THE defendant surrendered the certifi-
Gates thus Endorsed to the corporation and
procured to be issued, in lieu thereof, new
certificates in his own name and the stock
now stands in his name upon the
books of the corporation, in which he APP
pears as owner. He can, now, by merely
indorsing his name upon the back of these
new certificates, transfer them to any third
person, and such person can, in turn, by
surrendering them, procure new certlf-
Gates in his own name to be issued by the
corporation. He has already hypothe-
Gated large portions of this stock"
The plaintiffs contend in this case that
they are entitled to ask that the defendant,
"having the possession or control of par
ticular article of personal property of which
he is not the owner, may be compelled to
specifically deliver it to the person entitled
to its immediate possession.
1--WE bring ourselves, therefore, within
the principles which under the general
doctrines of courts of equity would enttle
US 10 SpeCllC QellVery OF the stock III
question, and are not driven to a receiving
of mere money judgment as damages for
the taking thereof"
The fourth contention of defendant is
that it appears upon the face of the COM
plant that the plaintiffs have by their
laches lost the right to come into q Court
of equity for relief.
In answer to this contention, the plain
tiffs hold that the doctrine of laches has
no application to the case presented by the
complaint. The action is one for the
specific recovery of personal property.
What is there, then, upon the face of the
complaint to deprive the plaintiffs of the
statutory right of bringing their action
within the statutory time? They have
sued within twenty-five months of the
time allowed them by the statute to sue."
The fifth contention of defendant is that
the complaint is defective because it con-
tains no averment of resci ssion.
In reply to this the brief says:
1.-THE plaintiffs here do not base their
rights upon rescission of the contract of
gift. They do not claim that that contract
was obtained by mistake, duress, menace,
fraud, undue influence, failure of consid-
Grafton, or the like. They found their
action upon the fact that the
asserted title in the hands of the defendant
is absolutely void that no act of theirs is
needed to make it SO; that an attempted |