*1 Div. Three. Mar. Dist., 15474. 1947.] No. Second [Civ. MARSIGLIA, Appellant, MARSIGLIA, THELMA M. SAM Respondent.

Sullivan, Appellant. Lane & Clarke Craig Respondent. John J.

KINCAID, pro tem. appeal J. judgment This is an from a following favor of defendant of an instituted aside, by plaintiff in which complaint she seeks set a property cancel quiet title By complaint certain real count one alleges July 14, 1944, complaint that on she filed a for divorce *2 against husband, herein; -her the defendant that thereafter bodily injury threatened her with and if she did not that go consent to an attorney choosing sign type to of his and a n of property agreement meeting approval settlement with his her; that he kill would or maim under that fear of such threats she consulted and substituted divorce action the attorney designated by place of husband the counsel choosing; her own prepared that the new counsel a written property agreement signed by settlement parties which was the September 26, on 1944. alleged

Plaintiff further filing that at the time of the of the complaint for divorce and of the execution of property the agreement community defendant she and owned property of approximately $7,500, consisting the value of aof Hollywood, California, house and lot situate at North house- Plymouth sedan, hold furnishings, furniture and one and bonds; pursuant property certain war that the to agreement community property granted all of said was and assigned defendant, exception $500 to cash paid plaintiff; which was to that is void procured plaintiff. reason the manner in from which it was plaintiff sought quiet For a to to second cause of action title her one-half interest in the above mentioned real every allega- substantially Defendant his answer denied excepting property of the complaint, tion the execution of interlocutory entry of the de- and the way defenses, defendant By affirmative cree of divorce. alleged filing by plaintiff prior that to the attorneys represent she retained Redmond and Redmond to her, following Attorney Gage, employed which she Daniel W. attorney employed and thereafter substituted as her record, Jay filing Gralla; that after the divorce action of the prior entry therein, to the default defendant’s adultery; committed an act of confessed attorney that committed to defendant and admitted to her adultery signed such act of a written statement to that effect; that she not told defendant did want adultery public want act of to become and did not against ground cross-complaint file her on otherwise, charge or that if he not her with such would accept claims $500 act she would the sum of full of all attorney’s alimony, costs, support, fees and transfer convey property plaintiff’s com- all of described plaint being defendant; there- Jay plaintiff’s attorney, Gralla, signed by parties and was any being hereto kind without duress exercised on plaintiff; same time and under the same conditions executed and delivered to defendant a deed complaint; the real described in her that plaintiff’s judicata, of action estopped causes are prose- res she is from cuting guilty this action and has been in prosecuting of laches her claim herein.

After of the instant cause court its written findings of fact and conclusions of law found that the did, filing complaint, at the time of the of the com- own the munity property therein excepting bonds; described the war exception marriage with the of the filing and the *3 complaint divorce, allegations the of other of her com- plaint are untrue. court further found that the agreement parties freely fairly between the into, entered thereof, that understood the contents that she was advised in connection by therewith her at- torney, threats, force, that no practiced duress or fraud was said upon her and that is a binding valid and one. longer The court further found that no has complaint interest the described in the allegations of the defendant’s affirmative defenses are true. by primary point urged appeal on this is findings the of fact court’s and conclusions of law are not by supported prob- the evidence. She concedes while isit ably question that the plain- true of threats alone made to the existing tiff under the circumstances here would not be such as to necessitate the of the contract of the parties, cancellation advice, proper nor would the of whether improper, or only of her nor wife a the fact the received nominal consideration be sufficient in and of themselves which to base cancellation of the contract between the parties, nevertheless, contends, when taken as a whole

704 entire record is things, true, considered these if

necessitate a cancellation of the between contract

“Property agreements occupy position a favored in the law of state this and are sanctioned the Civil Code. (Hill Hill, v. 82, 23 417]; Hensley Cal.2d 89 P.2d v. [142 Hensley, 179 284, Cal. 287 ; 158, P. Code [183 Civ. sec. 445] 159.) agreements Such usually are made with the advice of counsel after negotiations, courts, careful and the in accord legislative sanction, prefer agreement litiga rather than (Hill tion. Hill, supra, p. 89.) at parties When the have finally agreed upon division property, of their the courts are loath to disturb their except equitable con siderations. A property agreement, therefore, is not tainted compulsion fraud or or is not in violation of relationship binding confidential of the parties is valid and (Adams on the court.” (1947), v. Adams 29 621, Cal.2d 624 265].) P.2d [177

In our examination of the the purpose record for of ascer taining finding whether the of the court to the effect that no fraud, compulsion or relationship violation of confidential of occurred either in the terms or in the surrounding circumstances its execution, is evidence, sustained are governed we several established principles equity. As was said case Estate “ (1922), Cover : Cal. P. 583] [204 husband, by relation, reason marital [A] is bound in dealings highest with his wife to the good best faith consequence obligated dealings and as a in such not to any advantage obtain and retain resulting over her from con pressure, must, cealment or adverse and he if he would avoid the presumption emanating undue influence from the pro any advantage her, curement over make full and fair dis closure to her of all that she should know for benefit protection concerning transaction, the nature and effect of the or length else must deal with her arm’s and as he would stranger, with a while giving all the opportunity her the independent rights advice premises.” (See, as to *4 also, Auclair v. (1946), Cal.App.2d Auclair 72 791, 801, 802 ; P.2d (1942), Cal.App.2d 726, Norris v. Norris 50 [165 527] 847].) P.2d [123 733 presumption of undue influence which arises gains advantage

where the husband an in a transaction with disputable one may by proof his wife is a and be overcome

705 should know for that the wife disclosure a full and fair concerning effect protection the nature and her benefit by receipt wife Proof of the transaction. in order to overcome the advice not essential independent fully advised as shows she was presumption if the evidence to her transaction, as to all facts essential the nature freely voluntarily executed protection and conveyances. (Smith 201 (1927), v. Lombard delivered the (1943), 55]; Estate Brimhall 62 518, 524 P. Cal. Cal. [258 30, 981]; (1945), 34 Stevens Hutton 71 App.2d P.2d v. [143 Cal.App.2d 676, 479]; Macaulay 683 P.2d v. Booth [163 (1942), 386]; v. Cal.App.2d 757, 53 Brown 760 P.2d [128 (1930), Canadian Indus. Alcohol Co. Cal. [289 613].) attorney true P. This is even where the who conveyances by acting both had been consulted and was 524-525.) (Smith Lombard, supra, pp. bearing upon

The evidence the issues is somewhat con flicting viewing favorably support judg it in most shows, part, ment that no threats of kind were ever by made defendant to with the divorce connection get proceedings or to her to make or execute the set by deed, or the unless the statement defendant of then intention to the divorce on contest ground may adultery plaintiff, be so considered. After action, specifically any ques the trial of the within had waived privileged tion of between herself her communication Jay G-ralla, the latter testified that met plaintiff time going defendant at same as a result of to their by appointment prospective home to interview them as wit They thereupon pend nesses another case. told him of the ing response divorce and in to a addressed to told of the circumstances surround ing adultery the commission of the act of heretofore thereupon stipulate mentioned. Plaintiff’s counsel offered to was committed plaintiff, act of which stipulation accepted. Mr. then offer of Gralla continued testimony with his to the effect that the then him told agreed they which get and the remainder of $500 given although defendant; would be attorney then action, had an record Gralla willing if was asked he would be to be substituted as counsel *5 Upon case. his accepting appointment, a substitu- attorneys tion of Thereafter, was and filed. Gralla invited to officeto discuss the prop- ease erty agreement. came to She his office alone and he asked her whether, reason of the circumstances under which the matter property of the settlement had theretofore discussed, proposed been agreeable terms were with her or whether anything there was might to which she object; wish to long that so as he acted as her counsel he would see that her rights protected any were and if she had other desires to in- form him and possibly he would do whatever he could her; that under a charge the court could in its discretion give defendant Thereupon, told Gralla that under the circumstances she was satisfied with the property terms of the wanted get to the matter settled and quickly possible. over with as He thereupon property drew agreement, mailed it plaintiff’s residence, days to and a few thereafter received it duly back, executed At the trial of the divorce having action the was not present, previously defendant he therein, defaulted part Gralla asked aas of her testimony in proceedings the divorce prop- whether or not a erty had been entered into and as to payments whether she was satisfied with the and conditions therein, which replied contained she in the affirmative. Plaintiff testified in the case instant that while the com- munity property $7,500, in worth was about some $2,300 against was and lot. owed house Defendant testi- paid plaintiff with fied that connection set- $1,000 them the sum of about between and some war bonds. foregoing justifies the judge believing evidence attorney-client regardless origin nature of of the

relationship plaintiff, between Gralla and subse- quently opportunity, afforded the was invited her at- torney proposed the terms of the discuss might have register any objections which she to its con- and to provisions. She was alone her free templated any might of the presence coercion which the defendant from by Gralla of his determination implied and was assured have protected. were rights that her and interests to see over- evidence, whole, amply as a sufficient to taken part influence on the of the of undue presumption come to the plaintiff as dealings with in his the court’s to sustain evidence substantial question. There is knowledge plaintiff had full effect, including, findings, time prior to the necessary protection of all the facts deed; that she agreement and she executed the understanding their contents with full executed them independent advice meaning, the benefit and with attorney. points presented additional the several We have considered importance and of minor but consider them be *6 appeal. of this having bearing ultimate result upon no judgment is affirmed. Wood, J., concurred. foregoing opinion,

SHINN, Acting P. J.I concur respect phase to a wish to add a few remarks with Plaintiff, with an action for briefs. case not treated adultery with her husband’s pending, confessed to stipulated case her counsel brother. At the trial of the instant defendant’s guilt. In face of her confession and to her adultery by charge cross-complaint, threat to with the defendant, by the entered into a collusive agreed division of the of an which, terms of consideration facts which would have property, the existence of be concealed recrimination would constituted the defense of enabled to obtain a plaintiff would be from the court and In meet the defense. having to of divorce without decree a fraud agreed perpetrate terms, plain set purpose. they accomplished court and an complains was plaintiff now agreement of which that either scheme. Granted of their unlawful inseparable part agreement before it withdrawn from one could have complain after be heard to executed, neither could fully been parties stood accomplished. The had been purposes in the bed she judgment leaves delicto; the pari injustice. her no and hence does herself made for