Opinion
Rehearing Denied March 23, 1962.
Hearing Granted April 25, 1962.
Opinion vacated 24 Cal.Rptr. 837, 374 P.2d 805.
John J. Taheny, San Francisco, for appellants.
Dobbins & Weir, Vacaville, Goodman & Goodman, Fairfield, for respondent.
SALSMAN, Justice.
The defendants appeal from a judgment quieting plaintiff's title to the lands described in the complaint, and denying the defendants any relief on their cross-complaint. The defendant Kergan is the executor of the last will and testament of Hattie E. Mayhood, deceased, and the defendant Nanette LaRosa is the granddaughter of Hattie Mayhood, and sole devisee under her will.
The plaintiff, Leon Mayhood, was the husband of Hattie Mayhood, deceased. They were married in 1915, and Hattie Mayhood died in 1959. The plaintiff owned the lands described in the complaint prior to his marriage. The property consisted of approximately 50 acres of ground; during the marriage the property was improved and devoted principally to the growing of fruit and grapes. During the entire 44 years of their married life the plaintiff and his wife resided on the ranch. Except for a hobby hereinafter mentioned the plaintiff devoted all of his time to the operation of the ranch and to its cultivation, maintenance and improvement. Hattie Mayhood faithfully performed her duties as a wife, and assisted in the ranch operations whenever necessary. During the marriage a residence was constructed on the property at a cost of $12,000, and the orchard and vineyard were replanted and maintained at considerable expense.
The plaintiff's only income during marriage was from the operation of the ranch, with these exceptions:
(1) The sale of 2.61 acres of the ranch to the Sacramento Northern Railway Company.
(2) The sale of 2.031 acres of the ranch to the State of California for highway purposes.
(3) $1,600 borrowed money.
(4) Plaintiff's net share of the rental income from a house owned by plaintiff and his wife as joint tenants. After deducting taxes, insurance and mortgage payments the total net amount received from this source by plaintiff did not exceed $200.
(5) Income from ranch operations on the 2.61 acres deeded to the Sacramento Northern Railway Company and operated by plaintiff under a license.
(6) Receipts from the plaintiff's hobby as a collector and trader of old violins and bows.
It was plaintiff's custom to deposit all income from whatever source in a single bank account, and to make all disbursements for whatever purpose from the same account.
It is plaintiff's contention that the lands described in the complaint are his separate property; it is the contention of the defendants that the property is the community property of the plaintiff and Hattie Mayhood, deceased. After trial the court found that the property was the separate property of the plaintiff, and entered judgment accordingly.
Before proceeding to the main issues presented by the appeal it is necessary to discuss and dispose of certain claimed errors feferred to in the defendants' brief.
At the commencement of the trial the defendants offered as evidence plaintiff's answers to interrogatories, and also a deposition of the plaintiff, but the court excluded this evidence. This was error. The interrogatories and the deposition should have been received in evidence. (Code Civ.Proc. § 2016(d)(2); Dini v. Dini, 188 Cal.App.2d 506, 10 Cal.Rptr. 570; Murry v. Manley, 170 Cal.App.2d 364, 338 P.2d 976.) The error, however, was not prejudicial. The plaintiff was in court and testified at length. The defendants had a full and fair opportunity to point out to the court and to the witness the difference, if any, between the answers given in the interrogatories and his deposition and the testimony offered by the plaintiff in open court. Under these circumstances we see no serious prejudice to the defendants by the court's ruling.
The trial court excluded from evidence certified copies of certain deeds, a copy of a 1947 income tax return, and various insurance policies covering plaintiff's The trial court also sustained an objection to the defendants' question concerning an alleged statement made by plaintiff to a Mr. Harrison to the effect that plaintiff had received an offer of $120,000 for the ranch. In view of the trial court's later ruling that the ranch was purely agricultural property, and that the efforts of the plaintiff husband in connection therewith over the period of the many years of the marriage did not change its character from separate property to community property, the question of the value of the ranch became irrelevant and immaterial.
In their brief the defendants discuss the evidence under a number of different headings, all designed to show that during the long marriage of the plaintiff and his wife the ranch had been transformed from separate property of the plaintiff to the community property of the plaintiff and his wife. Thus there in discussed at length the services of the husband in the development and improvement of the ranch; the use of funds from a commingled bank account for ranch purposes; the use by the plaintiff of machinery and other mechanical equipment on the ranch; the replanting of the ranch in 1939, and the building of a residence on the ranch at a cost of $12,000. The defendants' principal complaint thus appears to be that the evidence is insufficient to support the judgment of the court and that the judgment is contrary to law.
The defendants cite and quote from Estate of Arstein, 188 A.C.A. 923, 10 Cal.Rptr. 772. Unfortunately for the defendants, the Supreme Court granted a hearing in the Arstein case and there reaffirmed the rule applicable here: 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231.' (Supreme Court's emphasis.) 56 A.C. 229, 14 Cal.Rptr. 809, 364 P.2d 33.
We find sufficient evidence in the record before us to support the judgment of the trial court. The record shows that the plaintiff had no substantial income except that derived from his ranching operations. The amounts received by him upon the sale of portions of his land to the Sacramento Northern Railway and the State of California were his separate property. It is a fair inference from the evidence that the $1,600 borrowed money was borrowed on the credit of the plaintiff's separate property, since the record does not show any assets whatsoever of the wife. These proceeds, too, were separate property. (Stewart v. Stewart, 113 Cal.App. 334, 298 P. 83; Estate of Ellis, 203 Cal. 414, 264 P. 743.) There are two sources of income, however, which were community income. The first of these is the income derived by the plaintiff from the cultivation of 2.61 acres deeded to the Sacramento Northern Railway, and thereafter used by the plaintiff under license. The evidence shows licenses were granted during the years 1916, 1917, 1918 and 1919. One witness did state that the plaintiff told her he had continued to cultivate the ground deeded to the railway company until about 1950. There is no evidence, however, of the cash value of any of the crops produced on this 2.61 acres of ground. Nevertheless, if the total income of the entire ranch be apportioned according to the income tax returns in evidence, the income to be allocated to this land would not exceed $600 per year.
The second source of community income was from the plaintiff's hobby as a collector and trader of old violins and bows. The testimony suggests only two sales--one sale of a violin for $4,000, with a cost to the plaintiff of $350; a second sale of a violin for $8,500, with the cost to plaintiff unknown. No other income was shown to have been derived from this hobby of the plaintiff, although there was testimony that at the time of the death of Hattie Mayhood the plaintiff had on hand a stock of violins and bows of considerable value.
If all of the income from the 2.61 acres of ground and the receipts from the sale of violins be deemed community income, it would amount to less that $1,000 per year averaged over the many years plaintiff and Hattie Mayhood were married. There is in the record uncontradicted evidence that the living expenses of the plaintiff and his wife amounted to or exceeded the sum of $2,500 per year, an amount greater than the average annual community income. While there is a presumption that the income received by the plaintiff during his marriage was community property, nevertheless this presumption is adequately rebutted where the evidence shows the total community income to be less than the total community living expenses. (Estate of Arstein, 56 A.C. 229-233, 14 Cal.Rptr. 809, 364 P.2d 33; Estate of Ades, 81 Cal.App.2d 334, 184 P.2d 1.)
Finally, the appellants argue that the trial court misconstrued the law applicable to the facts of this case. It was the opinion of the trial court that the rule announced by the California Supreme Court in Estate of Pepper, 158 Cal. 619, 112 P. 62, 31 L.R.A.,N.S., 1092; was controlling, and the judgment was based largely upon that decision as applied to the facts of this case. In the Pepper case the husband owned the land before marriage; he conducted thereon a nursery business, raising and marketing principally fruit trees; he had no other occupation than the cultivation of the land as a nursery; he continued this work with much success after his marriage, devoting his entire time to this pursuit; he borrowed $2,000 cash from his wife and used it in his nursery operations; during the marriage the parties resided on the land and the wife faithfully discharged her duties as a spouse; 26 years after the marriage the husband sold his land, nursery stock and personal property incident thereto, and 6 years later died. His estate consisted of cash, mortgages and stock, the proceeds of the sale of the land and the nursery. His estate was held to be his separate property and not the community property of himself and his spouse. The court stated: 'The appellant argues with great earnestness that the profits and earnings of such nursery business after marriage must, as matter of law, be held to be community property. We think this position cannot be sustained. Section 163 of the Civil Code provides that 'all property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property.' The question here is whether the proceeds of the nursery conducted on the land can be considered as 'issues' or 'profits' of the land. Earnings, acquired by the exercise of the industry or skill of either husband or wife, are to be credited to the community. On the other hand, the products of land, separately Diefendorff v. Hopkins,
Although the defendants have sought diligently to distinguish the Pepper case from the one before us, we are unable to ascertain any decisive difference. We think the Pepper case and the one before us now are of the same character and that we are required to follow the law as stated by the Supreme Court. It is true that the justice of the result achieved in Estate of Pepper has been doubted. (See McKay, Community Property, 2d ed., p. 220; 10 Cal.L.Rev. 271; Witkin, Summary Cal.Law, Vol. 4, p. 2725; Laughlin v. Laughlin, 49 N.Mex. 20, 155 P.2d 1010.) The Pepper case, however, has never been overruled. On the contrary, it was cited and followed in Estate of Hill, 167 Cal. 59, 138 P. 690, and Estate of Barnes, 128 Cal.App. 489, 17 P.2d 1046. It was also cited as the law in Cline v. Cline, 4 Cal.App.2d 626, 41 P.2d 588, and in Wynn v. Wynn, 170 Cal.App.2d 484 at 488, 338 P.2d 930. (See also Van Camp v. Van Camp, 53 Cal.App. 17, 199 P. 885.) From the level at which we survey the law, therefore, the Estate of Pepper still stands like a sturdy oak in the forest of judicial authority. If the rule be unjust, as some have implied, we are powerless to alter it. If the rule is to be changed that can be accomplished only by an appeal to higher authority. As an intermediate appellate court our duty is to declare the settled law as we find it. (Latham v. Santa Clara County Hospital, 104 Cal.App.2d 336, 231 P.2d 513.)
The judgment is affirmed.
DRAPER, P.J., and DEVINE, J., concur.