Opinion
Rehearing Denied Jan. 30, 1931
Hearing Granted by Supreme Court March 12, 1931
Appeal from Superior Court, Los Angeles County; H.G. Ames, Judge.
Action for divorce by Minnie V. Siberell against Harvey P. Siberell. From certain parts of an interlocutory judgment, plaintiff appeals.
Reversed and remanded, with directions.
HOUSER, J., dissenting.
COUNSEL
Barker & Keithly, of Los Angeles, for appellant.
Schweitzer & Hutton, of Los Angeles, for respondent.
OPINION
CONREY, P.J.
Appellant obtained an interlocutory judgment, whereby it was determined that she is entitled to a divorce from her husband. Her appeal is from only those parts of the judgment (entered on the 27th day of September, 1928) whereby it was determined that the defendant is entitled to an interest in certain described land, and whereby it was determined that, as between the parties to this action, a certain mortgage indebtedness constitutes a lien, charge, or incumbrance upon said land, or that as between the parties hereto such indebtedness or any part thereof is chargeable against or should be paid other than by defendant out of his separate property and funds.
In October, 1913, the real property, hereby designated as lots 29 and 30, was conveyed to appellant and respondent as joint tenants. The lots, as well as improvements later made thereon by these parties, were paid for with community funds. Afterwards, on January 19, 1918, respondent executed to appellant a grant deed of said lots and of other property. This deed recites a consideration of $10 paid by the grantee, but, in fact, nothing was paid.
The divorce was granted upon grounds of extreme cruelty. The court found that lots 29 and 30 are community property, and that there is no other community property except about $600 held by defendant, and certain tools, machinery, etc., which were awarded to the defendant, and the household furnishings and furniture, which were awarded to the plaintiff. The court found that lots 29 and 30 are of the value of about $40,000, and that this property is subject to a mortgage to secure an indebtedness in the principal sum of $6,000, for a loan, the proceeds whereof were received by the defendant. By its decree the court gave to the plaintiff an undivided one-half of lots 29 and 30, and gave to the defendant an undivided one-half of said lots, subject to the mortgage, and provided that said mortgage as between plaintiff and defendant shall be a lien only as against defendant’s interest in the property. The defendant was required to pay to the plaintiff $50 per month for the support of plaintiff and one child (a son) given into the custody of the plaintiff, and the other three children (daughters) were left in the custody of the defendant. Plaintiff was given the right to continue to occupy said real property, without rent, so long as the allowance for support of plaintiff and said son does not "exceed the sum hereby awarded."
The court found that said land, lots 29 and 30, at the time it was acquired by plaintiff and defendant, was their community property, and ever since has continued so to be. This finding rests upon the more specific findings that the land was purchased and paid for with community funds; that the deed of October, 1913, conveyed the property to plaintiff and defendants as joint tenants; that the title remained as vested under the deed of October, 1913, until January 19, 1918; that the deed made by the defendant to the plaintiff on January 19, 1918, was made without consideration, and solely for the convenience of the parties, and not with the purpose or intent that its community character should be changed so as to make it the separate property of the plaintiff.
In the bill of exceptions, the specifications of insufficiency of the evidence to justify the decision, in so far as the two deeds are concerned, relate entirely to appellant’s claim that the evidence is insufficient to support the court’s findings above mentioned concerning the purpose and effect of the deed of January 19, 1918.
Appellant now contends, in the first place, that by the 1913 joint tenancy deed she acquired as her separate estate an equal interest with her husband as joint tenant; that only the remaining half interest could have constituted community property; and that by the deed of 1918 her husband gave to her complete title to the entire property as her separate estate. (This deed, however, did not in terms declare that the property was conveyed to her as her separate property.)
There is no evidence in the record as to the circumstances under which the 1913 deed was made, other than the deed itself as proved by stipulation that prior to the 19th day of January, 1918, record title to the lots "stood in the names of plaintiff and defendant as joint tenants," and the fact that the property was paid for with community funds. But this last fact alone is not sufficient to change the legal effect of the deed. According to section 164 of the Civil Code as in force at date of the deed of October, 1913, it was provided that "*** whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such married woman and her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her, as tenant in common, unless a different intention is expressed in the instrument. ***" Section 161, Civil Code, declares that a husband and wife may hold property as joint tenants, tenants in common, or as community property. In the light of these Code sections, it is certain that, if the deed of October, 1913, had conveyed the property to the husband and wife without specifying a joint tenancy, the presumption would have been that they became tenants in common, and that the wife would have held her part as separate property, and that the husband would have held his part as community property. Estate of Regnart, 102 Cal.App. 643, 283 P. 860. We think it is also very clear that, where the deed is to the husband and wife "as joint tenants," the presumptions above stated fully apply, except only that the incidents of joint tenancy take the place of the usual tenancy in common. Moreover, the fact that the deed was in form to both husband and wife was in itself evidence of his intention to make a gift to his wife of the interest conveyed to her. Estate of Regnart, supra.
We conclude, therefore, that under the first deed appellant owned an undivided one-half of lots 29 and 30 as joint tenant and as her separate property; and that the other one-half interest, vested in respondent as joint tenant, retained the quality of community property.
From the foregoing conclusion, it follows that the deed of January 19, 1918, if it constituted a gift to appellant, was a gift of only the undivided interest of the grantor, and was effective only to the extent that it gave to appellant as her separate property that interest theretofore held by the grantor as community property. If, on the other hand, said deed was not a gift, then that undivided interest, although conveyed into the name of the wife, retained its status as community property. The court found that said deed was not made by respondent with the purpose or intent that its community character should be changed so as to make it the separate property of the plaintiff. This finding was in accord with testimony of respondent to the same effect. We are of the opinion that this testimony of respondent is sufficient evidence to sustain the finding. The testimony of respondent that he made this deed to avoid inconveniences which might result from his possible, but not yet certain, liability to pay damages on account of two automobile accidents, does not necessarily overcome the effect of his testimony that he did not by his deed intend to make a gift of the property to his wife. The conflict in the evidence left the question open to determination by the trial court, and its decision thereon will here be accepted as final.
The court, having erroneously determined that the entire ownership of lots 29 and 30 was community property, made its decree accordingly, and gave to respondent an undivided one-half thereof, subject to the conditions stated, relating to possession, and relating to the mortgage. But, since only one-half interest was community property, the effect of the decree would be to give to respondent (the party guilty of extreme cruelty by reason of which the divorce is granted) all, or nearly all, of the community property. This is contrary to law. Civ.Code, § 146; Quagelli v. Quagelli, 99 Cal.App. 172, 277 P. 1089; McKannay v. McKannay, 68 Cal.App. 701, 230 P. 214.
That part of the judgment is reversed wherein and whereby there was awarded to the defendant an undivided one-half interest in and to said lots 29 and 30, and wherein and whereby it was provided that, as between the parties to this action, said undivided one-half interest is subject to the existing mortgage thereon to secure an obligation of $6,000 or any renewal or extension thereof, as stated in the decree.
It is directed that the findings of fact be amended by striking out therefrom the statement "that said land at the time it was acquired by plaintiff and defendant was their community property and ever since has continued so to be," and by substituting therefor the following: "That said land at the time it was acquired by plaintiff and defendant became and was as to an undivided one-half thereof the separate property of the plaintiff and as to the other undivided one-half thereof was their community property and ever since has continued so to be."
It is further directed that the trial court, taking into consideration the evidence now in the record and any additional evidence deemed necessary to enable the court to provide for an equitable distribution of the community property of the parties, amend its decree in terms which shall award to the plaintiff a portion to be fixed by the court, but which shall be not less than one-half of the community property, and shall award to the defendant that part of the community property, if any there be, not awarded to the plaintiff. The decree as amended shall further provide that said mortgage as between plaintiff and defendant shall be a lien only against that part or interest in the property, if any there be, awarded to the defendant.
I concur: YORK, J.
HOUSER, J.
I dissent. Without seriously questioning the basic statement of the law contained in the prevailing opinion herein, in substance that ordinarily a conveyance of property by a joint tenancy deed to a husband and wife has the presumptive effect of vesting a separate estate in the wife, nevertheless, from a consideration not only of the circumstances which apparently surrounded the immediate transaction, but as well those which followed the delivery of the joint tenancy deed in question, I am led to a conclusion differing from that expressed by my associates.
The greatest effect that may be accorded the joint tenancy deed is that on its execution it created a disputable presumption that title to an undivided one-half interest in the property therein described was thereby vested in the wife as her separate property. Concededly, such presumption may be overcome, not only by direct evidence to the contrary, but also by such inferences as may be deducible from the entire evidence in the case. A decision of the questioned fact depends primarily upon a determination of the question of what was the intention of the grantees at the time the deed was executed. And, as has been frequently decided, in determining an issue of fact, the power of the trial judge to rest his conclusion upon inferences, in opposition to a presumption, is unquestioned. If, then, the evidence adduced on the trial of the action presents such facts as from them an inference fairly may be deduced, which in its effect contradicts the presumption that, at the time the joint tenancy deed was executed, it was the intention of the husband and wife that the wife should take her moiety of the conveyed property as her separate estate, it would follow that the finding made by the trial court "that said land at the time it was acquired by plaintiff and defendant was their community property and ever since has continued so to be" was supported by the evidence, and cannot be disturbed by this court.
Ordinary experience of men indicates that the purpose of a husband and wife in having real property conveyed to them by a joint tenancy deed is that, in the event of the death of either of them, the survivor may succeed to the title to such property without the commencement and the carrying to termination of proceedings in the probate court which, after such institution, and after much inconvenience, expense, and delay, may eventuate in the identical result which may be accomplished by the original execution of the joint tenancy deed. In the absence of any direct evidence to the contrary, taking into consideration the fact that had the husband and the wife really intended that any interest in the real property should be presently vested in the wife, a simple grant deed, or a bargain and sale deed, might have been employed, which easily might have included the direct declaration that the wife should take a present one-half interest as her "separate property"— at least it may be surmised that the purpose of the joint tenancy deed, far from vesting any present estate in the wife, was merely to insure the future vesting of the entire title to the property in the survivor of the husband and the wife. In addition thereto, from the evidence adduced on the trial of the action it may be noted that the property was entirely paid for with community funds; that at the time the joint tenancy deed was executed the wife had no knowledge of the fact that any separate estate was either created or attempted to be conveyed to her, nor even became aware of the assumed fact until several years thereafter, when she was so informed by a banker from whom the husband was negotiating a loan which was proposed to be secured by a mortgage on, or a trust deed of, the property; that the property was occupied by the husband, the wife, and their family as a home, and that during such occupancy the wife never asserted nor exerted any dominion or control over the property; that with reference to the property the wife "always signed everything he (the husband) asked her to sign"; that, when the so-called gift deed of 1918 was executed by the husband, it included the entire estate, rather than an undivided one-half of it, which would have been all that would have been necessary if by the joint tenancy deed the creation of an estate in the wife had been intended; and finally, with reference to the so-called gift deed, the testimony of the husband is that "this property was in my name at the time, and I didn’t know just what would happen about this and I wanted to protect the family in case anything came up on this matter and he (his attorney) advised me that I had better do that. It was deeded to her as a matter of protection so that the property would not be involved, but I never deeded the property with the intention of it being her own individual property; I had no intention of any shape or form or manner of that kind. It was no gift nor anything else; the fact is, that I didn’t want to have that involved and that was the reason for the transfer."
Furthermore, as having some bearing upon the question of intent of the husband and the wife as grantees of the joint tenancy deed, it should also be noted that neither in the pleadings, during the course of the trial, nor in the proceedings on the motion for new trial, was the question directly raised by the plaintiff relative to the effect of such deed. The case was tried entirely on the theory that plaintiff’s separate estate, if any, in the property described in the complaint, was created, not by virtue of the joint tenancy deed, but that it inured to plaintiff by reason of the so-called gift deed of 1918, which was executed by defendant to plaintiff several years after the joint tenancy deed was executed. The pertinent allegations of plaintiff’s complaint which reflect her claim of an interest in the property in question are "that said real property is the separate property of plaintiff, having been conveyed to her by defendant after an automobile accident *** (which accident, or the fear by defendant of a judgment against him by reason thereof, was the inducing cause of the execution of the so-called gift deed of 1918); *** that plaintiff has no real or personal property other than as hereinbefore set forth."
From such considerations it appears to my mind that, in opposition to the presumption created by the statute of separate property in the wife, a proper legal inference might have been indulged by the trial court which would overcome and overthrow such presumption, and result in a finding of fact "that said land at the time it was acquired by plaintiff and defendant was their community property and ever since has continued so to be." As hereinbefore indicated, if the evidence before the trial court was legally sufficient to justify such an inference, this court is powerless to disturb the ensuing judgment.