123 Cal. 196 | Cal. | 1898
Action for the foreclosure of a mortgage executed to the plaintiff by the defendant George E. White. The appellant, Frankie White, was made a defendant under the allegation that she claims an interest in the property which is subordinate to the lien of the plaintiff’s mortgage. Judgment was rendered in favor of the plaintiff, and the defendant Frankie White has appealed directly therefrom.
The note and mortgage upon which the action is brought were executed November 1, 1888, and the action was commenced May 19, 1894. In 1885 White commenced an action against the appellant for divorce, in which, in February, 1886, she filed a cross-complaint wherein she asked for permanent alimony and maintenance, and that such portion of the common property as should be proper should be assigned and set apart to her, describing also' the lands which are described in the mortgage. It does not appear whether these lands were described as community or separate property, nor does it appear whether the complaint contained a description of any other lands than those described in the mortgage. She also filed in the office of the recorder in the counties in which the lands are situated a notice of the pendency of the action, and the object of her cross-complaint. The court finds that the plaintiff had actual notice before the execution of the note and mortgage of the pendency of the action for divorce, and of the filing and contents of the cross-complaint, and also finds, that all of the lands described in the mortgage were the separate property of the husband. In May, 1889, a judgment of divorce was rendered between the parties, and the whole of the community property was awarded to the defendant therein, and at the same time there was reserved for her the right to applv, in case the community property should be insufficient for her support, for a supplemental decree assigning to her a sufficient
We need not consider the effect of filing with the county recorders a notice of the pendency of the action, inasmuch as the court finds that before the execution of the note and mortgage the plaintiff had actual notice of the pendency of the action and of the contents of the cross-complaint. The proposition contended for by the appellant is that her cross-complaint, by virtue of the allegations therein contained, constituted a lis pmdens, which so affected the property therein described that any person dealing with the same would be bound by whatever judgment or order might be made in reference to the property. Stated in another form, the proposition is, that in an action for a divorce by a wife against her husband, she can, by mere allegations in her complaint, without any order of the court in reference thereto, impress upon the community property, and also upon the separate property of the husband, a charge for the amount of ali
In Lord v. Hough, 43 Cal. 581, it was said: “The pendency of proceedings for divorce does not of itself interrupt the exercise of the husband’s powers. The property does not come into the custody of the court by the institution of the suit. The husband has still the control of it, and full power of disposition of it. He is held to equal good faith in all transactions relating to it as before the commencement of the suit. He'is subject to the same restrictions in its disposal. He cannot make a voluntary conveyance of any portion of the property, with the intent to deprive the wife of her claim in anticipation of divorce, any more than he could make such fraudulent disposition in anticipation of her widowhood.” After an action for divorce has been commenced, the court in which the action is pending has the power to set apart a portion of the community property, or of the separate property of the husband, as a security or fund for the payment of alimony, or to charge the same with its payment, and it may, under proper circumstances, enjoin the husband from alienating or encumbering the property. So, too, a conveyance or encumbrance made by the husband with the intent to deprive the wife of the means of obtaining alimony may be set aside at her instance as fraudulent and void. In the present ease, however, the court finds that the transaction between the plaintiff and the husband was bona fide, and that the money was loaned by the plaintiff and received by the husband without any purpose or intention to hinder, delay, or prevent her from enforcing any claim she might have, or any order the court might make against him. Section 140 of the Civil Code provides: “The court may
Certain authorities are cited by the appellant in support of her contention, and language is found in some of the opinions therein tending to support her claim. Mr. Freeman also in his treatise on Judgments, section 196, after stating that the doctrine of lis pendens is applicable only when the object of the action is to affect specific property, and that the rules pertaining thereto have no application in a suit for divorce and alimony, unless the wife designates in her complaint certain specific property which she seeks to subject to her claim, says: “If the pleadings in a suit for divorce describe specific property in respect to which relief is sought, either by making it chargeable with the payment of alimony, or setting it apart for the use of, or as the property of, one of the parties, or of partitioning or dividing it between them, the doctrines of Lis pendens apply.” (Citing in support thereof some of the same authorities.) But the decisions in the cases cited by the appellant, as well as those cited by Mr. Freeman in support of his statement, will be found upon examination to have been made either by virtue of some statutory provision, or upon the peculiar circumstances of the case before the court. In some of the cases the decision was rendered upon the ground that the complaint alleged that the property therein described constituted all the property out of which alimony could be recovered. In others the husband had been enjoined by the court from disposing of the property pending the action. In Wilkinson v. El
By an agreement between the plaintiff and George E. White, at the date of the note and mortgage, the amount thereof was to be paid to him at such times and in such sums as might be agreeable to both. Of the principal sum named in the note about eight thousand dollars was paid after the entry of the interlocutory decree in the divorce suit, and it is contended by the appellant that for this amount the plaintiff’s lien should be postponed to hers. By the interlocutory decree, however, the plaintiff was permitted to pursue and carry on his usual and ordinary business, and in the absence of any evidence to the contrary, it must be held that the receipt by him from the plaintiff of the amount remaining unpaid upon the note that he had previously executed, and the payment thereof by the plaintiff, was within the terms of this exception. The contention of the appellant that the loan by the plaintiff was ultra vires by reason of the fact that it was not made out of its “capital and accumulations,” as required by section 427 of the Civil Code, is met by the finding of the court that the moneys loaned by the plaintiff “constituted parts of its capital and accumulations.”
The court found that certain taxes upon the lands described in. the mortgage were not paid by the mortgagor, and that thereupon the plaintiff paid the same, and the amount thus paid by the plaintiff was included in the judgment. It is contended by the appellant that there was no evidence before the court that the plaintiff paid any part of the taxes, and, as this assignment of error is admitted by the respondent, the judgment must be reversed.
The court was authorized by the terms of the mortgage to al
The judgment is reversed.
Garoutte, J., and Van Fleet, J., concurred.
The following modification of the above opinion and judgment was filed January 6, 1899:
has filed herein a remission of its claim for taxes alleged in the complaint to have been paid by it for the mortgagor upon the lands described in the mortgage, and a consent that the judgment of the superior court be modified by striking out of and deducting therefrom the amounts found by the court to have been paid by the respondent for said taxes, with interest thereon, at the rate mentioned in the mortgage, from the times of payment until the rendition «of the judgment. (See Fox v. Hale etc. Co., 122 Cal. 219.)
The judgment heretofore rendered herein is therefore modified by striking therefrom the words “The judgment is reversed,” and inserting the following:
“The cause is therefore remanded to the superior court, and that court is directed to modify its judgment by deducting from the amount of eighty-eight thousand eight hundred and sixty-four dollars and forty-seven cents—the amount which the plaintiff is thereby adjudged to have and recover from the defendant George E. White—that portion thereof which was rendered for the several sums found by the court to have been paid by the plaintiff as taxes upon said lands, together with the interest allowed upon said sums; and, as so modified, the judgment shall stand affirmed. The costs of this appeal are to be borne by the respondent.”
Hearing in Bank denied.