169 P. 360 | Cal. | 1917
Lead Opinion
On October 20, 1910, William E. Dargie signed a deed purporting to convey to the defendant, Etta I. Patterson, a parcel of land in the city of Oakland. Dargie died on February 10, 1911. By the present action his widow attacks the validity of said deed upon the ground, principally, that the land described in it was community property of herself and William E. Dargie; that the conveyance was without consideration, and that she had not consented to it. The complaint also contains an allegation that the instrument was never delivered. The answer of the defendant put in issue *716 many of the allegations of the complaint. Before the case came on for trial, two of the three executors of the will of William E. Dargie intervened, and joined with the plaintiff in assailing the conveyance.
When the case came on for trial the parties entered into a stipulation disposing of many of the issues raised by the pleadings. It was admitted, for the purposes of the trial, that William E. Dargie and the plaintiff were husband and wife from December 15, 1881, until the death of Dargie; that all of the estate left by Dargie, as well as the property covered by the deed in controversy, was community property; that there was no consideration for said deed, and that the same was executed without the knowledge of the plaintiff, and without her consent, oral or written. Findings were made in accord with the stipulation.
Evidence was offered on the issue of delivery, and the court found that the instrument was delivered to the defendant on October 20, 1910.
Finding these facts, with some others which, so far as necessary, will be referred to later, the court concluded that the deed under which defendant claims the property is wholly void; that defendant has no right, title, or interest in or to said real property, and that the whole thereof is community property of William E. Dargie and the plaintiff, and forms a part of the estate of said William E. Dargie, deceased. From the judgment entered pursuant to these conclusions, the defendant appeals.
The questions presented for decision turn upon the effect of the amendment of 1891 (Stats. 1891, p. 425) to section 172 of the Civil Code. That section as originally enacted provided: "The husband has the management and control of the community property, with the like absolute power of disposition other than testamentary as he has of his separate estate." By the amendment referred to these words were added: "Provided, however, that he cannot make a gift of such community property, or convey the same without a valuable consideration, unless the wife, in writing, consent thereto." The proviso was first brought to the attention of this court in Spreckels v.Spreckels,
Nothing need be added to these expressions to demonstrate that the executors of the husband's will had no standing to join in the widow's attack upon the conveyance. Their intervention was based upon the theory that, under the amendment to section 172, the conveyance was absolutely void, and that the husband's representatives retained the same interest in the property that they would have had if the conveyance had not been made. So, too, the decision disposes of the contention, pressed by the widow as well, that the deed is an absolute nullity, and does not affect the ownership of the property in any degree. The gift, it is declared in the case just cited, is not void, but "only voidable by the wife at her option." The court goes on to amplify and explain this statement by means of the following quotation from the decision in Wildes v. Vanvoorhis,
What, then, is the conclusion to be drawn? May the wife avoid the deed in its entirety, or only so far as is necessary to protect her rights? While this question was not directly answered in Spreckels v. Spreckels, or in the later case ofWinchester v. Winchester,
It is argued, on behalf of the plaintiff, that the wife need not await the dissolution of the marriage by death to attack *719 such a conveyance; that she may, during the lifetime of her husband, bring an action to protect her interest in the community property. This question was mentioned, but not decided, in the later Spreckels case, supra. There is no occasion to decide it here. If such action may be brought by the wife during the husband's lifetime, the relief could go only so far as to bind the property to such extent as may be necessary to protect the ultimate interest of the wife, in case the marriage should be dissolved by divorce or the death of the husband. It cannot be held that she would, by proceeding during the existence of the marriage, be entitled to set aside the conveyance in its entirety. Such holding would be in direct conflict with the now established rule that the conveyance is binding upon the husband.
It follows that the judgment declaring the conveyance void and decreeing that the grantee has no interest in the property cannot stand.
Certain facts, in addition to those already stated, were stipulated by the parties, and found by the court, and the appellant's claims, based upon these further facts, call for notice. It was agreed and found that the value of the estate of W.E. Dargie subject to distribution exceeds five hundred thousand dollars; that the value of the land involved in this action does not exceed one hundred thousand dollars. All of this was community property. It appearing, therefore, that the amount of the estate which passed into the hands of the executors was sufficient to satisfy the claim of the widow to one-half of all the community property, including the lot conveyed without her consent, she must, it is argued, seek satisfaction of her demand for one-half of the community estate out of the property retained by the testator until his death, instead of proceeding against his grantee. We may assume, for the purposes of this discussion, that the record shows that the debts of the estate and the expenses of administration are not sufficient to reduce the balance in the hands of the executors beyond the amount necessary to meet such claim of the widow.
The appellant's position is based upon the suggestion made by Chief Justice Beatty in his concurring opinion in the first Spreckels case. The late chief justice thus expressed his view (
We conclude, therefore, that upon the death of a husband who has attempted to convey community property contrary to the provisions of section 172, his nonconsenting wife may recover an undivided one-half of such property in an action brought against the grantee, and this without regard to the amount or condition of the estate remaining in his hands at the time of his death. Such is the case disclosed by the findings of fact, none of which are assailed on this appeal. There is no occasion to order any further trial.
The judgment is reversed, with directions to the trial court to enter judgment that the plaintiff is the owner of an undivided one-half interest in the property in question, and that the defendant is the owner of the other undivided one-half *722 thereof. The rents, issues, and profits which have accrued during the pendency of the litigation should, by the terms of the judgment, be divided in accordance with this conclusion.
Concurrence Opinion
Rehearing denied.