174 P. 913 | Cal. Ct. App. | 1918
Defendant Benjamin F. Boyd appeals from a judgment reforming the description of real property in a written contract.
Plaintiff Mary Isabelle Buick was formerly Mary Isabelle Boyd, wife of defendant Benjamin F. Boyd, and the mother of plaintiffs Alfreida Elinor and Malcolm Glenn Boyd, infant children of the marriage. Defendants Eugene Boyd and Edna Boyd are also children of the said marriage and are made defendants because their consent to be joined as plaintiffs could not be obtained and because united in interest with plaintiffs. Plaintiff John H. Buick is joined with plaintiff Mary Isabelle Buick, being her husband at the commencement of the action.
On February 11, 1909, plaintiff Mary Isabelle Buick, then Mary Isabelle Boyd, commenced an action for a divorce in the superior court of Shasta County on the ground of extreme cruelty. Pending the action, on March 4, 1909, she and her then husband entered into a written agreement settling their property rights, her claims for alimony, counsel fees and *509 costs. Final decree in the action was granted the plaintiff May 3, 1910.
The concluding paragraph of the interlocutory decree reads as follows: "And it further appearing that the rights of the respective parties in and to the property described in said complaint have been equitably adjusted by an agreement between the parties, it is determined that the said property be awarded to the respective parties in accordance with said agreement, dated the fourth day of March, A.D. 1909."
This agreement was intended to make disposition of all the property which either of the parties claimed to own, some belonging to each being separate property and some the property of the community. It not only purports to adjust all claims to property, but it adjusts all matters of alimony, counsel fees, and the support and maintenance of the minor children. Reciting the pendency of the action, it declares that "the parties hereto are desirous of settling said dispute of claims to the property in controversy and withdrawing the same from the consideration of the court, and whereas, the parties hereto are desirous of making provision for the support of the said minor children and for the son and daughter of the party of the first part herein (Benjamin F. Boyd), Eugene Boyd and Edna Boyd, Now, therefore, it is hereby mutually covenanted," etc. The contract then awards to the second party (Mrs. Boyd) the ownership and possession of the homestead (describing the lot) theretofore declared. "Also a certain tract of land adjoining said lot, piece or parcel of land being the W 1/2 of the NW 1/4 of the NE 1/4 and the NE 1/4 of the NW 1/4 of the NW 1/4 of Section 11, Township 30 North, Range 7 West; also the water ditch and water right belonging to said premises" (describing the ditch). The alleged mistake was in the call "NE 1/4 of NW 1/4 of NW 1/4, Section 11," which should have read "NE 1/4 of NW 1/4, Section 11." It is further provided that second party "may continue to own, hold, occupy, possess and use [a certain lot in the town of Redding, describing it, and declared by the agreement to be her separate property], to have and hold the same, together with the rents, . . . during her lifetime or so long as she shall remain single and unmarried, for the better maintenance, support, care and education of herself and the two said minor children," and to go to said four children, Eugene, Edna, Alfreida, and Malcolm, should she *510 remarry. Then follows a clause by which the first party "does hereby grant all of his right, title and interest in and to said land and premises unto the said party of the second part to her use and to the use of said four children, . . . upon the conditions mentioned herein." Certain livestock, the separate property of second party, "shall continue to be and remain the property of the party of the second part herein as her separate and individual estate; and in consideration of the waiver of her right to alimony, the said party of the first part hereby agrees to pay to the said party of the second part the sum of $53.50 for costs and attorney's fees herein." It is then provided that certain real property (describing it) "shall continue to be and remain" the separate property of first party. Follows also a provision that in consideration of the grant to her as provided in the agreement, the second party "waives any claim for maintenance and support against the party of the first part, and hereby waives any right or title in and to any of the property of the party of the first part, except as expressed in this agreement." The instrument was duly acknowledged by the parties on the day of its date before Francis Carr, a justice of the peace in and for Redding Township, Shasta County.
By appropriate averments in his answer, appellant claims "that plaintiffs are and each of them is precluded or estopped from suing upon the alleged cause of action set forth in said amended complaint herein for the following reasons"; that the said court, on May 3, 1910, "made and rendered its final decree of divorce" dissolving the marriage which had theretofore existed between said Mary Isabelle and Benjamin F. Boyd, and "that no motion for a new trial was made or appeal taken from said final decree and said decree is now in full force and effect"; that said written agreement "was and now is merged in the said final judgment of divorce and the said plaintiffs in the above entitled action are and each of them is precluded or estopped from suing upon the alleged cause of action set forth in the said amended complaint."
Appellant's contention is stated as follows: "The title to the property involved having been adjudicated in the divorce action, the final decree of divorce is res adjudicata and is a bar to the present action."
The court found as facts, among others: "That the said plaintiff and the said defendant intended to set forth and describe *511 in said agreement the west half of the northwest quarter of the northeast quarter, and the northeast quarter of the northwest quarter of section 11, township 30 north, range 7 west, M. D. M., in the county of Shasta, state of California, but by mutual mistake in drawing and writing said agreement, said property intended to be described was incorrectly and by mistake described by the persons employed to draft and write said agreement, as the west half of the northwest quarter of the northeast quarter, and the northeast quarter of the northwest quarter of the northwest quarter, of section 11, township 30 north, range 7 west, M. D. M.; that said mistake in description was and is a clerical mistake made in writing and drafting said agreement. . . . That said mistake was not discovered by plaintiff, Mary Isabelle Buick, formerly Mary Isabelle Boyd, until the month of June, 1912, in the following manner: That on or about December, 1910, plaintiff, Mary Isabelle Buick, formerly Mary Isabelle Boyd, rented the real property described in said declaration of homestead, which included the west half of the northwest quarter of the northeast quarter, and the northeast quarter of the northwest quarter of section 11, township 30 north, range 7 west, M. D. M., in the county of Shasta, state of California, to one W. W. Sublett, and the said W. W. Sublett thereafter paid rent for the same to said plaintiff; that in the month of June, 1912, the said defendant, Benjamin F. Boyd, notified the said W. W. Sublett that he, the said defendant, was entitled to the rent for the said northeast quarter of the northwest quarter of said section 11; that said W. W. Sublett immediately thereafter informed said plaintiff that said defendant claimed the rent for the said northeast quarter of the northwest quarter of said section 11, and claimed title to the same; that immediately thereafter said plaintiff examined said agreement, and discovered that the mistake in description hereinabove set forth had been made in said agreement. That prior to the said month of June, 1912, said plaintiff was not aware, and had no knowledge, that the aforesaid mistake in description had been made in said agreement."
It is not seriously contended that the evidence was insufficient to support these findings. If there was any evidence to the contrary, it was appellant's duty to point it out in his brief, which he has not done. (Code Civ. Proc., sec. 953c.) *512 We have read the record of the evidence and find it amply sufficient to sustain the findings.
It appeared that the parcel of land misdescribed did not, when the agreement was entered into, belong to either of the parties, while the parcel which the court found was intended to be described was a part of the homestead declared by defendant in 1902, while the northwest quarter of the northwest quarter of said section, which included the misdescribed parcel awarded to defendant, was deeded to him by the Central Pacific Railroad Company in July, 1909. The evidence showed that the intention of the parties was that the property described in the homestead should go to plaintiff in the divorce action.
The only controverted question in the case is presented in appellant's proposition above quoted.
The rule, as stated in the Code of Civil Procedure, section
That the court and the parties treated the agreement as withdrawing the property rights from the court is shown by the fact that the agreement disposed of certain cattle to the plaintiff in the action and certain real property to the defendant of which no mention is made in the decree. This issue of property rights having been withdrawn, the present action cannot fairly be said to be an attack upon the judgment of divorce. "The rule undoubtedly is," as said by Mr. Justice Lorigan in Southern Pacific Co. v. Edmunds,
The judgment is affirmed.
Hart, J., and Burnett, J., concurred.