ANNA E. COOK et al. v. FRANK G. NORMAN, 50 Cal. 633

By the Court : This is an action of ejectment. The plaintiffs are the children of Charles W. Cook and his wife Charlotte, who deceased in 1857, and the premises were acquired by Cook in 1853, and belonged to the marital community. The defendants derive their title from Cook by deed delivered by him subsequently to the death of his wife. It was found by the court that before the death of the wife, Cook, the husband, had been a member of the banking firm of Palmer, Cook & Co., from which firm he had retired shortly previous to her death, and that upon the retirement of Cook tho firm was largely indebted, though J.

C. Palmer, a member of the firm, had assumed the payment of its entire indebtedness, and retained assets of the firm sufficient for that purpose; but these debts had not in fact been paid at the death of the wife. 1. Upon the death of the wife, the entire property of the marital community of which she had been a member, remained subject to the payment of the community debts. 2. The surviving husband was under obligation to discharge those community debts, and had a right to do so by applying the community property to that purpose. 3.

It is found by the court below, in this case, that when the community was dissolved by the death of the wife there was a large amount of outstanding indebtedness, for the payment of which the property of the community was liable. The circumstance, also found, that Palmer had, as between Cook and himself, assumed to pay this indebtedness, and that there were assets in the hands of Palmer sufficient, if applied, to discharge those debts, is of no import as freeing the community property from its legal liability in this respect. 4.

And we have no doubt that under such circumstances it was competent for the surviving husband to convey the estate belonging to the late community, the purpose of such conveyance being to satisfy the debts, with the payment of which the community property is charged by law. 5. The principal' question, however, is whether a purchaser in good faith from the surviving husband, under such circumstances, is bound to show, in order to support his title as against a child of the community, that the sale of the premises conveyed to him was, in point of fact, necessary to provide for the payment of the community debts.

And this question must, we think, be answered in the negative. The authority to sell the property of the community belongs to him as the survivor of the community, and is the same in its nature as was his power to do so during the existence of the community. The death of the wife did not deprive him of his power in this respect, and the purchaser dealing with him in good faith acquired a title valid in point of law as though the community had not been dissolved.

This general view is supported by the reasoning to be found in the adjudicated cases in this State and elsewhere, and is not opposed by the cases of Broad v. Broad (40 Cal. 493), and Broad v. Murray (44 Cal. 228). The surviving husband was a party in each of those cases, and it is not doubted that as against him the interest of the children of the community is to be taken as vested, and entitling them to have an accounting or partition, or other appropriate relief. Judgment affirmed.