Separate property, separate debts

California’s 1850 law

So last week The Legal Genealogist tackled the issue of California’s sole traders — women who, under an 1852 law, set up to do business in their own names even though they were married.1 That prompted a question from reader Stan Mitchell.

“My research includes Contra Costa County, California, and I’ve noticed that California Recorder’s Offices have registers for ‘Separate Property of Married Women’ or ‘Wives Property,’” he said. “If a women has an entry in one of these registers does it imply that she was a sole trader? Or did they have other uses too?”

Great question, and the answer is that those particular registers had an entirely separate purpose, and had nothing to do with the sole trader status of businesswomen in California.

We have to start here with the Spanish origins of California’s law. Remember that the Spanish Empire had laid claim to the land that became California as far back as the late 17th century, and those claims were taken over by Mexico after it won its war of independence from Spain in 1821.2

Then came the Mexican War with the United States, that finally ended with the Treaty of Guadalupe Hidalgo, signed on 2 February 1848. In that treaty, Mexico gave up its territorial rights to the land but extracted a promise from the United States to guarantee the property rights of the former Mexican citizens.3

And therein lies the tale. Because property rights under the Spanish law that Mexico had followed were not the same as under the common law inherited from England that the eastern United States knew and followed. And one of the biggest differences was in the law of property between husband and wife. The common law gave essentially all ownership and control over property to the husband. But Spanish law recognized separate property of husband and wife individually and community property owned by the two jointly.

The first Californians felt themselves obligated by the Treaty of Guadalupe Hidalgo to protect these property rights, and so wrote into the first Constitution of California, adopted in 1849, this language:

All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife’s separate property.4

And on 17 April 1850, the California Legislature passed a law putting this property scheme into effect.5

The 1850 Act began by recognizing the separate property rights of both husband and wife:

All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise, or descent, shall be his separate property.6

It went on to provide that “All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.”7

It did away with the wife’s right of dower in her husband’s estate and his right of curtesy in his wife’s estate.8 It provided for equal division of the community property if there was a divorce.9 If either the husband or wife died, the survivor got half of the estate if the decedent had descendants and all of it if there weren’t any descendants.10

Now the husband still had an awful lot of control. The statute gave him “the management and control of the separate property of the wife during the continuance of the marriage” but he couldn’t sell real estate or mortgage it without her written consent. Nor could he sell any of his wife’s personal property unless she joined in the sale.11

She had the right to ask the court to take that control away from him if she had “just cause to apprehend that her husband has mismanaged or wasted, or will mismanage or waste, her separate property” but that still didn’t give her management control. Instead the court could appoint a trustee — and the statute clearly expected that to be a man.12

So what does all this have to do with those record books Stan was wondering about?

Everything. Because §§ 3-5 of the statute provided:

      Sec. 3. A full and complete inventory of the separate property of the wife shall be made out and signed by the wife, acknowledged or proved in the manner required by law for the acknowledgment or proof of a conveyance of land, and recorded in the office of the recorder of the county in which the parties reside.
      Sec. 4. If there be included in the inventory any real estate lying in other counties, the inventory shall also be recorded in such counties.
      Sec. 5. The filing of the inventory in the recorder’s office shall be notice of the title of the wife, and all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of her husband.13

Read that last line again: “all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of her husband.”

That’s why those books recording women’s separate property exist:

     • When E.S. (Ella) Maynard went into the San Mateo County Court in October 1856 and filed her inventory of her property, she was permanently protecting from her husband John’s debts a separate estate consisting of more than 1,000 acres of land, “seven horses, six cows, 12 Chinese Sheep, two ploughs, three double and one single set of harness, two buggy waggons and a lot of fowls numbering one hundreds and twenty five or thereabout.”14

     • When Bridget Brophy filed her inventory in October 1858, she was declaring that 10 horses, 19 cows, 14 heifers, 14 calves, two yoke of oxen, one ox wagon, one spring wagon, one hay press, four ploughs, one harrow, one bull and a quantity of oats, barley and wheat were “not liable to be seized by attachment or execution for or on account of any debts due, contracted or owing by” her husband John Brophy.15

     • When Ann E. Keller declared in July 1865 that Block 174 in the eastern addition to Redwood City was hers, she protected it from any debts incurred by her husband George.16

     • And when Elizabeth Mead came into court in 1871, she was protecting the family farm of 104 acres and 15 head of horned cattle, six horses and colts, a spring wagon, farming utensils including harnesses, ploughs, harrows and rakes, about 150 chickens, about 50 turkeys, about 150 ducks, one piano and all the furniture.17

Separate property.

Separate debts.

And the wolves kept from the farmhouse door.

And I can surely be forgiven if I add — and some really cool records for 21st century genealogists…


 
SOURCES

  1. Judy G. Russell, “History of California to 1899,” rev. 22 Feb 2013.
  2. Article VIII, “Treaty of Guadalupe Hidalgo; February 2, 1848;” html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu : accessed 27 Feb 2013).
  3. California Constitution (1849), Article XI, § 14; California State Archives (http://www.sos.ca.gov/archives/ : accessed 27 Feb 2013).
  4. See, generally, Walter Loewy, “Spanish Community of Acquests and Gains and Its Adoption and Modification by the State of California,” 1 California Law Review 32 (1912); online at http://scholarship.law.berkeley.edu/californialawreview/vol1/iss1/3 (accessed 27 Feb 2013).
  5. § 1, “An Act defining the rights of husband and wife,” 17 April 1850, in Theodore H. Hittell, The General Laws of the State of California: from 1850 to 1864, Inclusive (San Francisco : Bancroft & Co., 1872), I: 516; digital images, Google Books (http://books.google.com : accessed 27 Feb 2013).
  6. Ibid., § 2.
  7. Ibid., § 10.
  8. Ibid., § 12.
  9. Ibid., § 11.
  10. Ibid., § 6.
  11. Ibid., § 8.
  12. Ibid., §§ 3-5.
  13. San Mateo County, California, Separate Property of Married Women and Sole Traders, Book 1: 1, Inventory of E.S. Maynard, 1 Oct 1856; County Recorder, San Mateo County, Redwood City, California; digital images, “California, San Mateo County Records, 1855-1991,” FamilySearch.org (https://familysearch.org/ : accessed 27 Feb 2013).
  14. Ibid., Book 1: 19, Inventory of Bridget Brophy, 29 Oct 1858.
  15. Ibid., Book 1: 78, Inventory of Ann E. Keller, 7 July 1865.
  16. Ibid., Book 1: 98, Inventory of Elizabeth Mead, 14 June 1871.
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10 Responses to Separate property, separate debts

  1. B.G. Wiehle says:

    This sounds like a really interesting set of records. How accessible are they? Did the inventory have to filed on marriage and updated whenever there was a significant change (gift, etc.) or could it be filed at any time? Would a copy of the inventory be part of probate or divorce proceedings?

    • Judy G. Russell says:

      Accessibility is going to be hit or miss, B.G. Stan Mitchell in his comment today notes that these records aren’t accessible in Contra Costa County, while San Mateo is online at FamilySearch and the Family History Library has some microfilm from at least San Benito, Alpine, Sacramento, Orange, Fresno, and Butte Counties. There’s nothing in the law that says when the inventory had to be filed but it makes sense that it would be filed — and refiled — whenever there was a major change because ONLY the property listed in the filed inventory was protected under section 5 of the law. And it very well could be part of the record (or at least a copy filed) in either probate or divorce proceedings, so it’d be a good idea always to check!

  2. Thank you for that excellent posting (it was very much worth waiting for).

    My ancestor had a previous marriage and I suspected that whatever property she retained from that marriage was recorded as hers separate from her husband. Your explanation of California women’s property rights confirms that. She also had a son from the first marriage and I thought she might want him to inherit that property on her death.

    Unfortunately, the Contra Costa County Recorder’s office has not been able to locate my ancestor’s “Wive’s Property” record (circa 1858). It is listed in the Recorder’s general index, with page and volume. That heightened my curiosity about what it might mean.

    Your example from San Mateo County gives me an idea of the kind of items that would be included in the inventory. Of course, I’d love to get a hold of the original document. Maybe I’ll ask the Recorder’s office to search again and try harder this time! (These records are not accessible by the public at that office.)

  3. Paul says:

    As a California attorney and amateur genealogist, I just wanted to add a little bit to the discussion of the origins of California’s Community Property system. In addition to the reasons stated in your post, another reason that the Community Property system was retained was to attract women to settle in California (where men vastly outnumbered women) this was expressed by some of the delegates at the framing of the first state constitution in 1849 at Monterey. Second, as to management and control of Community Property by the husband, this did not end until 1 January 1975. Interestingly, women had no testamentary power over their one-half of the Community Property (when wife died first) until 1923, unless it had been set apart as described in your post (or I suppose in a legal separation.)

  4. Susan Masse says:

    In the Oregon Territory, not only did women have a right to their own personal property after they married, they also owned, in their own name, one half of the donation land claim. A single man (white or not over 50% Native American, over 18) could claim 320 acres of free land; a married couple could claim 640 acres, but one half of that would belong outright to the wife. Women’s property from before marriage was recorded in each county in “Married Women’s Property Registers,” and was hers to dispose of.

    • Judy G. Russell says:

      Oregon’s path to those laws was a little different from California’s, Susan. In some ways it was behind California; in some ways, way ahead of California, but you’re right about where things ended up. Worth another blog post down the road for sure! Thanks for your input!

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