The rules of law announced by the majority are sound and well established by our previous decisions. In a situation such as is here presented, both by statute law and by judicial precept the burden of proof is upon the wife to establish all of the elements required to show a conveyance in good faith and for a valuable consideration.
In sharp distinction from those cases upon which the majority relies, the valuable consideration was here shown beyond question or cavil. Indeed, it is admitted that Mrs. Barbee received by gift or devise from her father or his estate substantial sums of money clearly her separate property, amply sufficient to create a sufficient and valuable consideration for the conveyance which was made. The majority opinion seems to rest solely upon the supposition that this money so received by Mrs. Barbee was not loaned to the community. That inference, supposition or presumption, in my judgment, is not warranted by the facts shown, and I utterly disagree with it.
In passing upon such a question, we must give weight to common and natural usage and custom between husband and wife, and judge their actions in the light of what might be expected to occur under like *Page 658 circumstances in any properly constituted marital community. Here, we have a husband and wife living together apparently in harmony and concord, the husband naturally, as well as legally, handling their community business affairs. The wife receives separate money for which she has no immediate need. She hands the money to her husband with no word or act indicating that she is making a gift or relinquishing any right. He uses the money for the benefit of the community, with nothing more than a general promise, more or less implied from the circumstances shown, that she will be protected.
That no note is demanded tends to establish the good faith rather than otherwise. Unless husband and wife are dealing at arm's length or have reason to believe that their acts will be questioned by others, they would hardly think of requiring binding legal obligations from each other. The demanding of a note under the circumstances here shown would tend to impeach the transaction, because those who intend to defraud are always careful to build up legal evidences of title.
The money being handed to the husband to be used for the community, at least made the community liable for money had and received. The legal obligation of the community was clearly to repay the money on demand and not before, and the statute of limitations would not begin to run in favor of the community until demand was made. The wife, having no need of the money and having confidence in her husband, the manager of the community, naturally made no demand, and the husband, feeling his moral and legal obligations to the wife, on his death bed performed only the necessary and honorable act required to protect her and to carry out the understanding upon which both had acted.
The court commissioner who heard and saw the witnesses *Page 659 so found. The trial court confirmed that finding, and, in my opinion, the evidence amply justifies the finding so made.
The judgment of the trial court should be affirmed.