The presumption of law is that property, conveyed to the wife, belongs to the community; and the direction of a husband, to make out the deed in the name of the wife, will not, of itself, rebut this legal presumption. In this case Slauter, the locator, might have conveyed to either husband or wife. His conveyance to either has the like effect, viz.: to vest the property in the community.
Where the husband intends to relinquish his right in the community property, and to transfer it to his wife, his act must be explicit and such as to leave no doubt of his intentions. A mere transfer of the property to a stranger, with directions to reconvey to the wife, will not accomplish the object, and show that a donation was intended; and especially when the stranger is bound under penalty, to make title. For, in such case, the conveyance, though made in the name of the wife, cannot deprive the community of its rights.
It is not necessary, in this case, to express any opinion as to the validity or extent to which donations of community property may be made from one partner in matrimony to the other.
Had this transaction, embracing the assignment of the league and the retransfer of the one-half to the wife, taken place under the com • mon law, where the estate of community and the doctrines in relation to it are unknown, the conveyance to the wife would have been presumptive evidence of a gift in advancement by the husband. 2
Vera. 67; 8 Ves. 199; Bright, Hus. and Wife, vol. 1, p. 32. Where a husband purchases stock in the name of himself and wife, it is prima facie a gift to her in the event of her surviving; Bright, Hus. and Wife, vol. 1, p. 32; and a transfer, by the husband, of stock already purchased, in, (into), their joint names, would be presumed a gift to the wife. lb. These are doctrines of the common law, and cannot be recognized under a system in which a conveyance to the wife is presumptive evidence, not of her separate right but of that of the community.
The doctrine in relation to donations between husband and wife need not be discussed; as we are of opinion that the facts do not afford any evidence of donation. Judgment reversed and cause remanded.
Reversed and remanded.
7. Estates in Partnership.
63 Illinois, 540. - 1872. [Reported herein at p. 686.]
II. Incidents of joint estates.
1. Possession and Disseisin.
38 Maine, 356. - 1854. [Reported herein at p. 640.]
64 California, 134. - 1883. [Reported herein at p. 396.]
2 HILL's Equity (S. C), 277. - 1835. [Reported herein At p. 398.]
3. Repairs and Improvements. WALKER v. SHERMAN. 20 Wendell (N. Y.), 636. - 1839. [Reported herein at p. 218.]
99 Massachusetts, 74. - 1868.
Foster, J. - The issue in this action is on an account of one cotenant in common against another to recover from the defendant in set-off part of the cost of certain needful repairs made by the plaintiff in set-off upon the common property. It is not founded upon any contract between the parties, but upon a supposed legal obligation which, if its existence were established, the law would imply a promise to fulfill.
The doctrine of the common law on this subject is stated by Lord Coke as follows: "If two tenants in common or joint tenants be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith ad reparationem et susten-tationem ejusdem domus teneantur, whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co. Litt. 200 b; lb. 54 b. And in another place he says: "If there be two joint tenants of a wood or arable land, the one has no remedy against the other to make inclosure or reparations for safeguard of the word or corn," but if there be two joint tenants of a house, the one shall have his writ de reparatione facienda against the other. This is said to be because of "preeminence and privilege which the law gives to houses which are for men's habitation." Bowles's Case, 11 Co. 82.
In Carver v. Miller, 4 Mass. 561, it was doubted by Chief Justice Parsons whether these maxims of the common law, as applied to mills, are in force here, especially since the provincial statute of 7 Anne, c. 1, revised by St. 1795, c. 74. * * *
Doane v. Badger, 12 Mass. 65, was an action on the case. The plaintiff had a right to use a well and pump on the defendant's land; and the defendant had removed the pump and built over the well, thereby depriving the plaintiff of the use of the water. The judge before whom the case was tried had instructed the jury that the defendant, by the terms of a deed under which he claimed, was bound to keep the well and pump in repair, although they were out of repair when he purchased, and, without any previous notice or request, was liable in damages for the injury the plaintiff had sustained by his neglect to make repairs. The court held that no such evidence was admissible under the declaration, the cause of action stated being a misfeasance, and the proof offered being of a nonfeasance only; also, that a notice and request were indispensable before any action could be maintained. Mr. Justice Jackson in delivering the opinion made some general observations, unnecessary to the decision of the cause, the correctness of which requires a particular examination. He said that the action on the case seems to be a substitute for the old writ de reparatione facienda between tenants in common, and could not be brought until after a request and refusal to join in making the repairs. He added: "From the form of the writ in the register, it seems that the plaintiff, before bringing the action, had repaired the house, and was to recover the defendant's proportion of the expense of those repairs. The writ concludes, 'in ipsius dispendium non modicum et gravamen.' It is clear that until he have made the repairs he cannot in any form of action recover anything more than for his loss as of rent, etc., while the house remains in decay. For if he should recover the sum necessary to make the repairs, there would be no certainty that he would apply the money to that purpose." Mumford v. Brown, 6 Cowen, 475, a per curiam opinion of the Supreme Court of New York, and Coffin v. Heath, 6 Met. 8o, both contain obiter dicta to the same effect, apparently founded upon Doane v. Badger, without further research into the ancient law. If it were true that the writ de reparatione was brought by one cotenant, after he had made repairs, to recover of his cotenant a due proportion of the expense thereof, there would certainly be much reason for holding an action on the case to be a modern substitute for the obsolete writ de reparations. But all the Latin forms of the writ in the Register, 153, show that it was brought before the repairs were made, to compel them to be made under the order of court. Indeed, this is implied in the very style by which the writ is entitled, de reparatione facienda, viz.: of repairs to be made; the future participle facienda being incapable of any other meaning. This also appears in Fitzherbert, N. B 127, where the writ between cotenants of a mill is translated; the words, in ipsius dispendium non modicum et gravamen, quoted by Judge Jackson, being correctly rendered, "to the great damage and grievance of him," the said plaintiff, Fitzherbert says: "The writ lieth in divers cases; one is, where there are three tenants in common or joint or pro indiviso of a mill or a house, etc., which falls to decay, and the one will repair but the other will not repair the same; he shall have this writ against them."