EMELINE WOODS v. GEORGE E. WHITNEY and AMOS WOODS, 42 Cal. 358

By the Court, Crockett, J.: It is impossible to distinguish this case, in principle, from Peck v. Brummagim, 31 Cal. 441, since reaffirmed in Dow v. Gould & Curry S. M. Co. id. 653, and Ingersoll v. True-body, 40 Cal. 603. In Peck v.

Brummagim it was distinctly decided, after full argument, that it is competent for a husband, who is free from debt, to convey the common property, by way of gift, to his wife; and that if he purchase property which is paid for out of the funds of the community, and direct the conveyance to be made to the wife, with the intent that the property shall thereby become the separate estate of the wife, the deed will take effect as a gift, and vest a separate estate in the wife.

And further, that if the conveyance be on its face an ordinary deed of grant, bargain, and sale, reciting a valuable consideration, it is competent to show by parol the real facts of the transaction, in order to rebut the presumption that it is common property. The case at bar seems to be precisely of this character; and, as between the husband and wife, it was clearly competent for the latter to show, by parol, the facts of the transaction, and that the conveyance was intended to and did take effect as a gift.

It is unnecessary to decide whether the defendant Whitney would have acquired a valid title if he had purchased from the husband in good faith, for a valuable consideration, without notice of the rights of the wife. The Court finds that he purchased with full notice, and we cannot disturb the finding on the ground that it was not justified by the evidence. Viewing the evidence in a light most favorable to the defendant, the most that can be affirmed of it is that there was a substantial conflict in it.

If the actual possession of the plaintiff, under a claim of title coupled with the collection of rents, and the exercise of other acts of dominion, was not constructive notice of her rights, there certainly was some evidence tending to show actual notice. There was no error in excluding the questions propounded by the defendant to the witness Amos Woods, in respect to his intentions at the time of the execution of the deed of the plaintiff". It was for the Court to decide upon his intentions from his acts and conduct at the time.

His secret, undisclosed intentions would be unavailing as against his acts and declarations at the time of the transaction. Judgment affirmed.