The burden rests upon the party asserting against such presumption to prove by a preponderance of the evidence the nonexistence of the community character. Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090. McQUADE, Justice.
And even if it did not the attachment should not be discharged if the complaint can be amended to state a cause of action. Bear Lake State Bank v. Wilcox, 48 Idaho 147, 151, 279 P. 1090; Rose v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821; Savage Tire Sales v. Stuart, 61 Mont. 524, 203 P. 364; McQuay v. McQuay, 86 Mont. 535, 284 P. 532; Redwood Fire Products Co. v. Miller Mfg. Co., 61 Cal.App.2d 505, 143 P.2d 389. The amended affidavit was in all respects sufficient.
There were no rights of creditors involved at the time of the transfer to Mrs. Stickler of the property in question. There was no recital in the deed that it was to be the sole property of Mrs. Stickler. ( Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090.) The determination of what the transaction really was, was a question of fact to be determined by the court.
Appellant and her husband testified the property was first purchased jointly, then transferred to George Randall, a friend, for a stated consideration of $4,800, in order to have him later deed it to appellant as a gift from her husband, their understanding being that a direct conveyance could not be made. The retransfer from Randall to appellant was for a stated consideration of $3,000, though only $10 was paid by Mr. Prescott. The deed contained no notation that the property was to be appellant's separate estate. ( Bear Lake State Bank v. Wilcox, 48 Idaho 147, 279 P. 1090.) Only appellant and her husband testified, and in addition to the above they stated in substance that after the conveyance from Randall, they both lived on the place, improved it with joint funds, indiscriminately used the income therefrom, and in general made no distinction between their property, real or personal, as separate or community.