*1 July F. In Bank. No. 16249. [S. 1943.] STRONG, HADLEY Appellant, BLANCHE v. MURIEL F. STRONG, Respondent. *2 Ap- for Carey & Kenneth and Henderson Henderson J. pellant. Respon- & J.
Snook & Snook Chase and Samuel Chase dent. by plaintiff
TRAYNOR, J. brought This action Strong Hadley Strong against Muriel P. Blanche defendant city Oakland. to a house and lot in the *3 Wadey by conveyed 16, 1925, June property December was on defendant Strong, time the husband of to Lester at that H. January 6, on Strong, and the Muriel P. deed was recorded in com- part 1926. made at least with purchase The was munity grant In 1932 and deliv- a deed was executed funds. Strong, of Lester plaintiff to Blanche mother Hadley ered Strong Strong. Strong H. Both Lester and Muriel P. H. signed acknowledged deed, Strong only H. and the but Lester Strong induced grantor. was Muriel P. was therein as named by representations that he to the deed husband’s conveyance made difficulty, in the was was financial that shortly protection home, and that there the of their would reconveyance April a them. deed was he to The recorded Strong granted January 1932. Muriel P. was 14,1938, On formerly lot, and the a divorce was house and awarded the family subsequently the home of her two home the and appeals children Plaintiff from the and herself. in favor of the defendant. decree no interest to defendant pass divorce could against her, inquiry
unless the
deed could
be enforced
so
conveyance
must first
directed at the effectiveness of the
be
to
in 1932.
Defendant invokes section 172a of
join
Code,
that the wife must
with the
providing
the Civil
by
“community
any
executing
instrument
which
in
husband
longer
for a
any
interest
therein is leased
property
real
sold,
year,
conveyed,
than
or is
or encumbered.
period
one
executing
join
in
to
in
contends that
order
. . .” Defendant
grantor.
deed,
wife
be named therein as
must
cases,
Dent-
early
Ingoldsby
Juan,
Two
Cal.
that
Waldie,
legislation providing
zel
involved
signed
conveyance
separate
a
must
property
of the wife’s
be
by
husband,
by joint
such
that
must be
a
deed,
by
that
it must
and wife.
be executed
husband
(Hittel
103, 105,
(1872) pp.
General
of California,
Laws
516.)
that
these
complied
This court held
the husband
with
by signing
deed,
ground
statutes
on the
it would be
expect
to
unreasonable
a husband who had no interest
convey
grantor.
formal
to be
declared that
It
the husband
required
join merely
give
or withhold his
assent
gave
he
transfer,
by signing
and that
his assent
deed.
reasoning applies
The same
to Civil Code section 172a.
adopted
legal
When that
section was
wife had no
community
(Spreckels
property
Spreckels,
interest
Dargie,
Cal.
Estate
Cal.
Lahaney
Lahaney,
App. 345], Newfield, and Childs v. 136 Cal-App. [192 217 924], holding that if sign [28 several persons a grantors, only not named therein deed, some of are whom granted. property in the convey their interest those so named Waldie, Dentzel v. Ingoldsby Juan, and distinguishing In v. Wright that it clear in made
however,
v.
the court
Cordano
person
a
correctly decided, and that
without
those cases were
signing
by
granted could
legal
property
in the
any
interest
in
join
its
that he
comply
requiring
a
a statute
deed
with
in
Wright
origin
had its
rule in
execution. The
Cordano v.
sealed,
signed but
at
law
were not
the fact that
common
deeds
in
required
grantor
therefore
and identification
was
replaced by
body
after
were
of the deed. Even
seals
unnecessary
applied
it
still
signatures and
rule
was
became
courts,
525.)
mechanically.
Sleeper, 2 N.H.
(Elliot
Several
has
however,
the rule now
have refused to adhere to
being.
Park,
its
Defendant, moreover, asserts under acquired this property 172a too late. At the time conveyance of com provided no section action avoid joined “shall munity wife had not real in which the filing expiration year from the be commenced after the one office record such instrument recorder’s (Stats. 829.) 1917, p. county in which the land is situate.” years before the recorded several deed action. It is immaterial that the wife commencement plaintiff’s brought has no action to avoid deed but invokes suit, section 172a as defendant for statutes commonly limitation, although restrict phrased terms (Cal. only actions ing the commencement of Code Civ. Proc. seq.), apply action sec. 335 et causes of raised the de (Hermosa Co., fendant. Beach etc. Co. v. Law Credit Bradbury Higginson,
545 3 Sugar Co.], Hollister Cal.2d Co. v. ; P. Union [Estate 254] 848].) 119 526 P. 273]; Sneath, Bliss v. Cal. 740 [51 P.2d [47 not sustain not sustain a declaration will “A which title will Chapin Freeland, 142 383 (Holmes, J., in Mass. a v. plea.” 701].) 138, Am.Rep. Defendant, despite plea 56 N.E. [8 basis of a cause ownership, prevail seeks fact plaintiff’s deed, a cause of action on which action to avoid the statute has run. argument
Defendant’s that statute should not bar assumption this cause necessitates the that should be 172a strictly than the usual statute of limitations. construed more recipient by reverse is true. deed executed object husband alone obtains a voidable interest. The year one limitation in section 172a make interest is to just after barring absolute that time as statutes actions for recovery usually of real property are to create construed new title possessor adverse terminate the paper (See interest of the Title Ballantine, titleholder. Possession, Adverse 32 135; Tiffany Harv.L.Rev. on Real Property (3rd ed.) 1133, section seq.; Prop- et Restatement: erty, Introductory chapter 15.) Note It not reasonable Legislature to suppose that the grantee’s intended to make the right property dependent to the on the chance of the wife’s appearing plaintiff rather than defendant.
It is
also contended that
waived the limitation un
der 172a on defendant’s cause of action.
It
is true
that a party relying on the defense of the
of limita
statute
(See
plead
tions must
it.
Sugar
Union
Co. v. Hollister Estate
Co., 3 Cal.2d
273].)
740
P.2d
Plaintiff, however,
[47
pleaded
she owned the property,
plea
and a
ownership
permit
sufficient to
proof of
acquired
a title
as a
result
running
Beale,
statute
(Jordan
v.
limitations.
rule
particularly
seq.) applies
et
800,
12 Cal.Jur.
P.2d
367, 372
Moore, 8 Cal.2d
(Thompson v.
actions.
Puntenney,
134,
Cal.
Maison v.
A.L.R.
Carpenter
Smallpage,
137-139 [298
Adams,
Burris
30 P.2d
*6
433,
565];
Symmes, 49 Cal.App.2d
667-668
P.
Davies v.
[31
Defendant, moreover,
102].)
is not
445-446
P.2d
[122
(See
of the deed.
legal
passed
execution
owner, for
on
might
723.) Any rights that she
in 12
cases cited
Cal.Jur.
of
the declaration
the deed or to
to the cancellation of
have
Rocha,
v.
(Rocha
entirely equitable
are
constructive trust
Steenbergh, 173
1010]; Farrar
Cal.
396
P.
v.
197 Cal.
[240
Freligh
251
;
McGrew,
Cal.App.
95
94
v.
[272
P. 707]
[159
that such
Walsh,
492),
it is settled
791];
Equity,
P.
in an action to
title when
rights cannot be established
allegations asserting de-
merely general
contain
pleadings
(Aalwyn’s
denying
of plaintiff.
ownership
fendant’s
Robin-
Martin,
21,
;
26
P.
v.
173
Law Institute
Cal.
[159
158]
County
Los
521];
124
P.
Muir,
118,
son
151
v.
Cal.
[90
of
Angeles
37,
878,
48
P.
Ann.
1912
Hannon,
v.
159 Cal.
Cas.
[112
Wright,
77,
B
; Reilly
970].)
v.
117
80
Cal.
P.
1065]
[48
present
only
In the
case
no pleading,
there was not
fraud,
supported by
finding
but no
and a
v.
(Taylor
finding of
proof
fraud if there is no
fraud.
v.
1074]; Floyd
756,
P.
51
Taylor,
ances (Cf. case, conveyance. does not such a Howe which involve v. 42]; Banning Johnson, Marleau, v. Cal. 213, 22 Vestal, Mason v. 254; Mur Barney, Bird Am.St.Rep. Grum v. phy, Cal.App. Neil, Cal.App. Sellers conveyances 390].) against Such are void 2d express section creditors, terms of Civil Code under Conveyance Uniform Fraudulent Act in effect when 3439.09, in adopted and of section effect Civil Code levy thereafter. A may creditor prop execution Barney, erty conveyance. (Grum as if had no there been supra; Vestal, supra; Murphy, supra), Mason v. Bird see by and a sheriff is sued for conversion who virtue such an may prove, grantee’s execution under a title, denial Johnson, (Howe was fraudulent. supra; Banning Marleau, supra; supra; Mason Vestal, conveyance may Barney, supra.) Grum v. A fraud (Civil gift by creditors because was a an donor it insolvent designed 3439.04), beyond Code put § (Civil 3439.04), or, reach creditors Code the case § personal property, it because was not followed immedi (Civil delivery. 3440.) ate The fraud that Code entitles § party altogether different, a transfer, however, rescind is based on representations reliance, false inducing thus involves considerations of policy different and different legal consequences. judgment is reversed.
Gibson, J., Edmonds, J., C. Schauer, J. and concurred. *7 CURTIS, J. I dissent. preliminary point As a of discus- necessary sion it is presentation to briefly advert to the and disposition litigation of this in plead- the trial court. The ings are in the usual form appropriate short complaint actions. The alleges plaintiff’s the ownership of certain real described property and the defendant’s assertion of an interest therein adverse plaintiff. to the The defendant e in her all answer denies th complaint of averments the except as to her adverse claim, admits, which she but she denies that such claim is right; without in this connection alleges defendant that she the rightfully owner and in possession property of the prays quieted and that title in be her. The case was tried the sitting jury. court without a general Following allegations the form of the contained in parties’ respective the pleadings, the trial in court its find- ings resolved the adverse of in of ownership claims favor the defendant and in was entered accordance with that adjudication of the property. title to the Such determination upon inefficacy rests of of the deed 1932 to sustain the plaintiff’s cause action. following review of the will record demonstrate
propriety of the trial court’s decision: While the defendant consistently main- she question, in signing the deed admitted title” “passing no intention that she had tained to the any interest” “passing home” or giving away [her] the instrument knew defendant appears that the plaintiff. It that because mother-in-law, but in of her drafted favor was the document did read ill the defendant of her health the trans- statement that husband’s solely relied on her reconveyance by “merely convenience” action was of the Illustrative de- immediately follow. would his mother excerpts from understanding are the matter these fendant’s your did question “What to the testimony: In answer executed, the defend- you” the deed was tell when husband me he wanted “That upon examination testified: ant direct convenience; merely for a to his mother this deed name, and other my in put it very shortly would back he told me was I the same paper signed time] [at either document I not read giving it us. did deed back to queried when my On condition.” cross-examination due to have identity documents she claimed of the two to the ‘‘ he told contemporaneously defendant One signed stated: his the other giving the house his mother and me was as to reason giving me.” When asked what mother back to transfer, gave negotiating the de- her for her husband difficulty answered: “He said he was some business fendant from his children the home taken two and he didn’t want Confirmatory safeguard his wife—he wanted to us.” affair is the fact that understanding the defendant’s enjoyment nowise possession At trial the result of this deed. the defend- disturbed as husband, Strong, told ant’s Lester H. admitted that he signed defendant when she the deed that such transfer was necessary because financial difficulties. pertinency of some connection the evidence
Also relating to the dis- support matter of consideration conveyance. puted attempted At the trial the transaction here her action correlate involved with some eight deeding pieces weeks later in of real estate to her two *8 son, Strong. Although Lester H. the latter was called to testify plaintiff, on behalf he of the was not to corro- asked his borate mother’s claim toas the issue of consideration. It appears that the defendant did not con- know of these later veyances husband, she, therefore, to her was unable to testify However, as their purpose. to she did state that at question plaintiff time in the the financially interested Strong con- of Lester H. in certain business ventures On cerned with their outcome. cross-examination successful frequently gave money son plaintiff the her admitted that she might pressing or loans relieve property on which he obtain to significant financial In obligations. discrepancy of the view the nat- respective deeds, between dates of the mentioned the ural as relationship plaintiff well as business the between Strong, and Lester H. conflicting possibilities and the toas object the plaintiff’s realty son, of the to the transfer of her having trial court, advantage observing the of the demeanor of parties the on the witness-stand, to elected dis- apparently credit the plaintiff’s any claim as to the existence of connec- tion conveyances between the successive that concluded they independent were transactions, not consid- intended as other. In the settled rule eration the accord with that one for trial province pass it is within the exclusive of the court to weight of upon credibility of witnesses and the the the the finding against evidence, implied plaintiff the the issue appeal. of would not be disturbed on consideration readily From this state of the record it can inferred of solely by defendant was induced to the deed persuasion misleading explanation reason of her feigned transfer; husband as nature to of the that she significance import never realized the full of the instru- she ment, implicit but that had trust her husband’s man- agement of accepted their business affairs and he what said question; without and that the reposed confidence she in him betrayed in an attempt to consummate a their community real property Thus, to detriment. there was an absence of actual consent part to the transfer on the the defendant, and the prevailing under circumstances the plaintiff urge is not position in a binding force signature defendant’s an-unchallengeable deed mani- festation conveyance. of assent to the appear While does that the part procurement took in the deed, support of the ease claim re- defendant’s equities fiduciary basis of husband’s of his upon breach lief her interests duty protect and the want consideration present the transfer. From support aspect situation gift, grant those wherein or be- principle is akin cases quest person obtained undue a third vitiated influence thereby, procurement and it is held immaterial
550 (Moore participate. beneficiary immediate did not thereof the in Moore, v. 81 195 P. see cases collected Cal. [22 613-615.) 96 A.L.R. evidentiary majority opinion holds that these matters bearing upon appeal of this no the determination have
would plead did not the fraudulent character the defendant because finding a there- of nor did the trial court make based the deed in militate However, the record do not such on. omissions judgment nullifying operative the against propriety the of the conveyance plaintiff quiet in In to the 1932. a of the effect generally, a suit, actions a defendant under title unlike other acquired the may the issue that general raise denial a af- through fraudulent transfer part whole title p. (12 §95, 1056; fecting claim of thereto. Cal.Jur. Marleau, 42]; Banning 67 P. Johnson, 107 Cal. [40 Howe 72 692]; Murphy, Cal.App. 240 39 121 Cal. P. Bird [53 Neil, Cal.App.2d 128 154]; P. Sellers [117 court point of this was the trial 390].) Nor after consideration finding special previously make thereon. As required to conventional stated, complaint are the the and answer litigation, findings the are type of suitable to this style general pleadings. the The issue as form of responsive to merely in arose the fraudulent nature of they of if Findings fact are sufficient the trial. evidence at Zink, pleadings. (Dam v. language of the follow the Campbell, Cal.App. P. 331]; Vasey v. also, Elizalde, Cal.App. Biurrun §213, 984.) Ownership p. Cal.Jur. cases collected see fact by the defendant was the ultimate which forth in the alleged in the and which answer set (Hitchcock Rooney, findings. reviewing 373].) Canty, 175 In
Hannah findings regard judgment, sufficiency support of the probative not to mere ultimate facts will be had to the Supp.) in Ten Year (2 and cases cited Cal.Jur. facts. the defendant opinion further holds that majority validity of the deed to position question in a not now year the date the time limit one from plaintiff because specified instrument, period in sec- recordation right exercise for the tion 172a as available wife’s years conveyance, had several expired avoid an unauthorized However, title action. commencement of this before the validity application statement of the law has no when ground questioned rather than deed fraud A non-compliance section 172a. statute of with the terms of may special limitations is a defense which either relied on at party or waived election of a entitled to avail herself it, specially made, if and, be deemed have will *10 (16 640; §232, p. Garcelon, been waived. Cal.Jur. Estate of Am.St.Rep. Cal. 570 32 L.R.A. 595] Sneath, 848].) Conceding Bliss that the general pleadings permit form of the in this not action did plaintiff’s assertion of plea a time limitation formal and preliminary that without such foundation she have could urged bar such in the trial court avoidance of the defend- relief, ant’s claim appear it from does the record that present point did in fact there. Consequently such matter should not for the first ap- be considered time on (Estate peal. Garcelon, supra; Copp, Moore v. supra.) Sneath, governing Bliss v. The rule situation, such plea where the formal statute of limita- unnecessary tions is in order to introduce evidence thereon at trial, Sugar is stated the case of Union Co. v. Hollister 3Co., Estate “However, Cal.2d : has been party plea held unless the adverse invokes the trial, brings of the statute at the the attention of purpose trial court to offer support his evidence of such plea, the court cannot assume that he desires to make any defense, plea such he cannot invoke the for the first time ” on appeal. [Citing authorities.] Consistent herein, with review of the record the de- fendant is operative entitled relief from the effect opinion conveyance. disputed my In should affirmed. J.,
Shenk, Carter, J., concurred. Respondent’s petition rehearing August for a was denied J., Shenk, Curtis, J., Carter, J., 1943. voted rehearing.