12 P.2d 430 | Cal. | 1932
This appeal is taken upon the judgment-roll alone. The action was brought by plaintiff to quiet his title to certain real property situated in the city and county of San Francisco. The defendant answered, and in addition to her answer filed a cross-complaint in which she claimed to be the owner of an undivided one-half of said real property, and also the owner of an undivided one-half of another parcel of land situated in the county of Santa Clara. Each of said two parcels of real property stood upon the public records in the name of the plaintiff who claimed to be the sole owner of the same. The court made findings of fact upon which judgment was entered in favor of the defendant upon her cross-complaint. Two of these findings are as follows:
The court further found: "Finding V. That as a result of the joint efforts of plaintiff and defendant, under and by virtue of said agreement, and while they were living and cohabiting together as husband and wife, the plaintiff purchased, with funds accumulated through the joint efforts of plaintiff and defendant," the real property described in said cross-complaint.
[1] Plaintiff now seeks to set aside this judgment in favor of the defendant on the ground that the agreement under which said parties acquired said real property was based upon an immoral consideration and is, therefore, unenforceable against either party thereto. We do not so understand the findings. The agreement to live together as husband and wife without the formality of a marriage ceremony is set forth in finding II, quoted above. The agreement to invest their separate earnings for their joint benefit and that all property so acquired should be owned by them jointly is set forth in finding III. While the court found that the parties agreed "upon the making and entering into" the agreement of cohabitation that they would invest their earnings in property to be held jointly by them, it did not find that this latter agreement was a part of, or that it was in any manner connected with, their agreement to unlawfully cohabit together. The two agreements, although made at the same time, are separate and distinct contracts, and neither is made dependent upon the other. Therefore, it cannot be said that the consideration *701
of the latter agreement was the unlawful cohabitation assented to in the agreement set forth in finding II. It clearly appears from finding III that the consideration of plaintiff's agreement to hold all property for their joint benefit, which was acquired by their joint efforts, was the agreement on defendant's part that all monies earned by her should be paid to plaintiff and invested by him in property in which each party was to be the owner of an undivided half. While we find no authority exactly in point, the case of McWhorter v. McWhorter,
The authorities cited by plaintiff and relied upon by him in support of his contention that the agreement upon which the defendant relies was based upon an immoral consideration, are not applicable to the facts in the present action. They simply hold, as stated by the plaintiff in his brief, "That agreeing to live and cohabit together as man and wife, without the performance of a marriage ceremony constitutes an illegal and immoral consideration for the basis of a contract, and is, therefore, a void consideration." There is no question but that this statement of law is correct, but as we have shown the facts as found by the court in this action do not bring this case within the principles of law there enunciated.
We do not think it necessary to discuss other points made by the appealing plaintiff. We have examined them with considerable care and find no merit in any of them. A discussion of them in detail would be of no advantage to anyone.
The judgment is affirmed.
Langdon, J., Preston, J., Seawell, J., Shenk, J., Waste, C.J., and Tyler, J., pro tem., concurred.