Show 1 WHITHORE vs JENKINS I I + I Brief for Defendant as Presented to the Court on Wednesday In the Third District Court ELIZABETH WHIIMORE vs 1 I JohN W JENKINS and other I Thin defendant is not a party to I the mortgage sought t > be foreclosed but she claims the mortgaged premises pre-mises by a superior titlq sho claims them by foreclosure of alien or charge hereon which antedates the plair tiffs mortgage by many years To direct this argument to precise and comprehensive propoeiliona we contend IThat the moit agor and this de fondant being husband and wife when he obtained title to tho mortgaged premises and these premises having been acquired by their joint labors prior to 1862 when they were divorced on the petition of this defendant de-fendant they were joint ownera thereof as community property and ehe has become owner of the whole on a sale to her by his default in payment pay-ment of a sum decreed to her as thu equivalent of her interest The facts involved in this proposition proposi-tion have been shown by tho record in Jenkins vs Jenkinp put in evidence evi-dence by the plaintiff That record shows that they were husband and wife from 1814 to 1862 that they were then divorced on her petition that the mortgaged property was acquired ac-quired in lee daring that time by their joint labors nod was free from incumbrance that ho had besides 3000 of personal property By the decree of the Probate Court divorcing them certain rooms in the house on these premises were cnnro priated to her for her separate use together with certain personal property pro-perty She occupied thoso rooms perEonally and by a tenant for about fifteen months and a half when I ho obtained possession by wrongful ouster of this defendants tananl from that time he derived a profit from these rooms by renting them The mortgage in question was executed ex-ecuted by him in 1875 afterwards in the same yeas she applied to the Probate Court by petition for a modification modi-fication of the order made in her bc hall when tho decree was made That petition was determined on ap pea in this court on the 23d day of November 1878 This court in consideration con-sideration of the order sought to bo modified of the conduct of Jenkins in depriving plaintiff ol tbe use of these rooms and of tho profit he had derived horn them together with the fact that the property had been oiiginally the product of their joint labois awarded her 1500 in lieu ot the property or any part of it this sum was declared to bo a lien and incase in-case of default in the payment of the eum decreed to her a tale was provided pro-vided for That ssla was made after warda confirmed by this court and followed by release from Jenkins and a marshals deed She was let into possession and has ever since occupied the property llra defendant having contributed equally to pay for the property there would be u resulting trust in her favor if she had not becn a wife for I a proportionate interett in it 2 Storys Eq 11201 I Her wifehcoi does aot in this territory ter-ritory preclude her from tbo benefit I of that trust ebo is entitled to nn equal benefit with her then husband in all the property they made while they wore kusband and wife Daring 1 that period there was ro ttatutory 1 law in this territory which directly defined the rights of a wife they must therefore be ascertained by the unwritten law with such aids as the meager legislation on tbe twill t-will afIord It the common law fur niohes the rule for measuring her rights then she had an inchoate right of dower in these premises and aright a-right to bo supported out of Jenkins estate On the other hand if the I civil hw applies and governed this particular subject t then our prop jai i tion embraces the truo statement of what she was entitled to claim These two systems of jurisprudence have had a large domain and centuries cen-turies may be counted in the period of their growths They had their origin in neighboring ccuntries in Europe where they respectively atill govern millions of population in all their interests and relations They both have a firm focting on this continent con-tinent The civ > l law prevails in one of the British provinces on the north in all the countries south of us and in one of tbe states of this Union it is largely the law of admiralty and maritime courts it is the basis of our equity jurisprudence and in fact the best part of it baa by a tljw process pro-cess of change been incorporated into the common law it3elf The common com-mon law is nominally in force throughout the United Slates except in Louisiana But it no where exists is this country intact it was brought by tho English colonists to this country coun-try as we have been professionally taught they brought it ai a birthright birth-right and a boon it did nct pursue them and impose itself on thorn against their willhence they exercised exer-cised the privilege of leaving behind so much of it a1 they deemed unsuit to their new condition It is flexible in itr adaptibility to new relations and as it derives its force by immemorial im-memorial custom and observance so it may in parts become obsolete by disuse er be improved and enriched en-riched by the prevalence of a more humane system of civil government and a higher civilization In tho older states it became the law almost of course but in the new states its authority has not been Liken for granted it baa generally been adop ted in a qualified and a cautious manner by statute Theeo act do not schedule the common law but give it an equivocal certificate of good moral character and hand it over to the court to bo stated in ds tail There is no supreme court whoie adjudications settle any con troverted principles of common law The superior court of each state may sette the law for tint state and the federal supreme court in Its peculiar province Ihe diversities to be seen on nearly every subject attest tbe liberal amendment of the common law without giving it any other name The result of this loose method of adoption is that in nearly every slate some feature of tnu civil law has been put in place of some rejected part of tbe general system still called the common law The common law was in tins way male the unwritten law of nearly all the western states Oregon California Nevada Texa Colorado and Indiana adopted it by statute It was extended over the northwest territory by the ordinance of 1787 There has been no legislation on the subject for this territory > if wo except the provision in tne organic act giving fo this court common law and chancery jurisdiction From this it might be naturally inferred that the common law and the jurisprudence jurispru-dence of the court of chancery were to ba administered It cannot however how-ever mean that in full for that would include common law and equity pleading and practice as well as any other part and preclude any legislative innovations whatever The code has superceded the pleading and practice of both courts and Ibis r innovation by territorial legislation hal been sustained and sanctioned by the Supreme Court of the United Stiles That provision of the organic act is an apparent recognition of the existence of tho common law in thin territorybut it is not a statute expressing express-ing any irtention to introduce or ca tabhsh it much lees a provision to impose tho whole body of the cam mon law upon the territory The same provision was inserted in the organic not for Nevada I The whole body of the common law cover came here and there is no reason or authority for affirming ita presence here Tile cases of th ° First Nstonrl Bank cc Kinner Utah R 105 and ihtmas 18 U P R ECo E-Co id 254 imply but a qualified acceptance Certainly it never cl moa mo-a the colonists brought it to New England If the immigrants to this territory have each brought a modicum modi-cum of rnvrr fen law from th < 3 Elates or countries from wnich they severally came or the whole bcdy of it we should haY a mixed system incongruous incon-gruous and chaoticnor can we have the common law merely because the territory belongs to the federal government gov-ernment nnd is governed by the authority of Congress for the United States hss no common law This territory was derived from Mexico there ra3 a community here at the time of the cesion that community com-munity was fur a timo subject to tho conceded sovereignty and law of that republic preeump lively tho civil law governed them for it was then and still is Iho 1 jurisprudence of the whole republic The cession did not abrogate tin law previously in force Ibis is a fundamental funda-mental principle of international According to the lawa of Mexico all property acquired during coverture was community property Buchanan estate 8 Cal 507 Johnson Johnson 11 Coil 201 Smith vs Smith 12 Cal 216 In ell tho territory obt lined from Mexico by that treity in California Nevada and Tcxap husbands and wives have os comihunilypropnly all their accuttiulftons estates in dower and by the courtesy are un unknown There is no statute in Ibis territory that recognizes any such estates nor ia there at this time any claimant of mob nn estate Its It-s believed there never has been In 1872 there was a statute parsed declaring de-claring that diwer did not exist dower was not abolished but dcclared not to exist C L 342 11022 Estates by tho courtesy cannot exist consistently with the other provisions pro-visions of the same nit authorizing married women to convey their separate properly Long vs Marvin 15 Mich 60 Billincs vs Baker 28 Darn 843 Thurber vs Townsend 22N Y 517 This legislation in respect to dower would bo liable 10 much criticism il the rights of married women were governed by the common law Her rights were very unequally fixed by that law and all changes since h < ivo been aaielioiations Statutes have very generally been passed to enlarge her privihges and very seldom to abridge them If by this statute the intentiOn was t take away dower that was believed to previously exist it is a solitary instance of such barbarous bar-barous legislation wholly out of harmony har-mony with the enlightenment of the age DAn act passed in Tennessee confining con-fining dower to lands of which the husband died eaizod was the subject sub-ject of caustic judicial animadversion in that stale Combs vs Young 4 Yorg i23 Bish vs L M W 246 Is it fairly to to be inferred that this Utah act was passed to depriv widows of any rights in lands of their deceased husbands Such an intention in-tention would be a reproach to iho o who had any part in making each a law and to Congress for delaying its disafficrrrmnce It is part of the history his-tory ol the tjrritorv that thia law wa approved upon an entirely different and more humane view of iLl tfisct namely to ensure a recognition of I the more liberal right in tho wife given by the laws of all the states organized upon the territory acquired from Mexico that of co equal owners in all post nuptial acquisition This construction puts the rights of a wifo on a good foaling and relieves that a2t of its odious character instead in-stead of being flagrant outrage it then smooths the way to a better ee tate This construction also harmonizes har-monizes in letter old in spirit with another eUtute here and which is also in force in stets hero community com-munity propsrty is expressly continued con-tinued C L op 343 376 i g 1025 1155 Laws Nevada 1S61 p 96 sec 25 1 Gen St Cal i 3574 The statute authorizing the court granting a divorce to make such order a relation to the children and property of the parties as it shall deem jl1stthe children and property of tin parties Thsy are mentioned together as subjects in which they had a like lommunily of interest subjects to bo partitioned when the owners separate On the assumption lint the premises were community propertyit H immaterial im-material that the title wag taken in Jenkins name so far as be is concerned con-cerned Fmith Di Smith 12 Cal 223 On fiat assumption the 51500 allowed al-lowed this defendant by the dccroo of this court was a substitute for her interest in-terest in the specific property and that interest was not extinguished until payment of the price As she bought in the property at tho sale authorized by thai decree her interest has never been divested When alien a-lien is foreclosed the title thus derived has priority from the inception of the lien When the order was originally made H ISO thia defendant was adjudged a right in the premises tnemeelves an csato forf hfethe 1500 allowed by the last order was expressly tho equivalent for that estat3 with this damages for withhold ing it added like interest to the principal prin-cipal and the sale was but a font clcEuro for purchase money by which the vendor was restored to not only her former estate but she acquired the additional interest to which the orders so mado extended as security I Concluded in to morrows paper |