81 P. 715 | Cal. Ct. App. | 1905
The appellant sued for and was granted a divorce from respondent on the ground of desertion. In paragraph fourteen of his complaint it was alleged: "That there is community property belonging to plaintiff and defendant, 160 acres of hill land, and some stock and farming implements." This averment was not denied in the answer. On the contrary, its truth was expressly admitted. This admission, manifestly, made a finding unnecessary, but the lower court, in the finding of facts, recited that this particular parcel of hill land was purchased by and conveyed to plaintiff before his marriage with defendant. That about eight hundred dollars of the purchase money was borrowed by plaintiff from defendant before marriage, the plaintiff giving to defendant his promissory note for said sum, which note has not been paid. That eleven hundred and fifty dollars of the purchase price paid was money received from the sale of certain water-rights appurtenant to said land. That the remainder of the purchase price was paid from *115 money earned by the husband and wife after marriage. The conclusions of law contained a recital that this parcel of land "is the community property of plaintiff and defendant," and in the decree this land is so treated, and is equally divided between the parties. From this portion of the decree plaintiff appeals, on the ground that it is not supported by the findings of fact. He contends that, under the findings, the land mentioned was his separate property, and that, as the decree awards him a divorce upon the ground of respondent's desertion, the court had no power to divide such separate property equally between the parties. (Citing Civ. Code, sec. 146)
The solution of the problem thus presented depends in a great measure upon the legal effect of the unnecessary finding of probative facts above mentioned. That such finding was unnecessary is established by many authorities. (First NationalBank v. Maxwell,
The judgment is affirmed.
Chipman, P. J., and Buckles, J., concurred.