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District Court of Appeal, Third District, California.


Civ. 6628.

Decided: January 12, 1942

Kenneth J. Carey, of Oakland, and Henderson & Henderson, of San Francisco, for appellant. Snook, Snook & Chase, of Oakland, for respondent.

This is an action to quiet title to real property situated in the city of Oakland. The complaint alleges that plaintiff is and for a long time prior to the commencement of the action had been the owner of the real property in question and that the defendant claims and asserts an interest therein adverse to the plaintiff which is without right. The defendant's answer denies plaintiff's allegations of ownership and alleges that defendant is the owner and in possession of the property, and entitled to the possession thereof, and prays that title be quieted in her.

The defendant had judgment in the court below decreeing that she is the owner of the real estate and quieting her title against the plaintiff. Plaintiff has appealed from the judgment.

The respondent Muriel F. Strong was married to Lester H. Strong, the son of appellant Blanche Hadley Strong, on June 11, 1922. On January 14, 1938, in a divorce action brought by Muriel F. Strong against Lester H. Strong, an interlocutory decree of divorce was entered in favor of Muriel F. Strong awarding to her any and all community interests of the parties in the real property involved here.

Said property was deeded to Lester H. Strong on December 16, 1925, by one June L. Wadey. The deed was recorded January 6, 1926. On March 24, 1932, a grant deed to said property was executed and delivered to Blanche Hadley Strong. It was signed and acknowledged by Lester H. Strong and Muriel F. Strong, but only Lester H. Strong was named in the body thereof as party of the first part. This deed was recorded April 14, 1932.

During the time that the property stood of record in the name of Lester H. Strong the following transactions relating to encumbrances thereon were had: Lester H. Strong and Muriel F. Strong executed a deed of trust of the property to Stockholder's Auxiliary Corporation, dated January 22, 1926, recorded January 29, 1926, to secure a loan of $3,500; on December 19, 1929, there was a reconveyance under said deed of trust to Lester H. Strong and Muriel F. Strong, which was recorded the same day; and on that day a new deed of trust to secure $3,500 was placed on record, bearing date the 13th day of December, 1929, executed by Lester H. Strong and Muriel F. Strong to National Bank of Italy Company.

Appellant bases her claim of title upon the deed dated March 24, 1932; respondent claims under the decree in the divorce action. It is clear that if the whole title passed under the conveyance of March 24, 1932, appellant must prevail, as in that case there was no existing community interest of Lester H. and Muriel F. Strong in the property for the decree to operate upon.

Appellant's contention that the property was the separate property of Lester H. Strong must fail. The evidence on that point was in conflict and this court will not disturb the implied finding of the trial court that the property was acquired with community funds. We must treat it as having been community property.

No point is made that the reconveyance of December 19, 1929, vested any title in the respondent. It did not have that effect. Tyler v. Currier, 147 Cal. 31, 81 P. 319.

Did the said deed of March 24, 1932, pass title to appellant? We think it did.

Prior to 1927, the wife had no vested interest in the community property. Title to the community property was vested in the husband, subject to the statutory restraints upon his power to alienate or encumber the same without her consent, and the power given her to devise a portion thereof. Riley v. Gordon, 137 Cal.App. 311, 30 P.2d 617; McKay v. Lauriston, 204 Cal. 557, 269 P. 519; Maxwell v. Carlon, 30 Cal.App.2d 356, 86 P.2d 666.

The property here was acquired in 1925 and the rights of the husband and wife must be measured by the statutes then in effect. McKay v. Lauriston, supra, and cases cited. Title having been in Lester H. Strong alone it was necessary only that Muriel F. Strong join with him in executing the deed in order to make it completely effective, which she did. She was not required to be named as a party to it, for she was conveying no estate. Riley v. Gordon, supra; 3 Cal.Jur. 10 Yr.Supp. 593, 626; Civil Code, sec. 172a; Cordano v. Wright, 159 Cal. 610, 115 P. 227, Ann.Cas.1912C, 1044; Ingoldsby v. Juan, 12 Cal. 564; Dentzel v. Waldie, 30 Cal. 138; Douglas v. Fulda, 50 Cal. 77.

Respondent claims that she had no intention when she signed the deed of passing the title or giving away her home or passing any interest to Blanche Hadley Strong and, while she admits signing the deed with knowledge of its contents, she says that she was told by her husband that the transaction was merely for convenience. In their essence these contentions suggest fraud. No fraud was pleaded, which was necessary if it was relied upon as a defense. 12 Cal.Jur. 800; Duncan v. Duncan, 6 Cal.App. 404, 92 P. 310. No effort was made to connect appellant with the alleged deceitful statements. It is not contended that she was present or in any way knew what her son had told his wife or that she knew or suspected what her daughter–in–law intended or had in her mind when she joined in the execution of the deed.

Counsel for respondent do not go so far as to argue that the record shows any fraud upon the part of or imputable to appellant and certainly none appears. We quote from the argument as follows: “We have a case of the husband having attempted to commit a fraud upon his wife, and to have attempted to deed the property to his mother, which deed was, as above pointed out, without consideration other than that the mother should hold the title for convenience, and in the meantime the character of the property, i. e., the community property, had never changed. Thereupon in the interlocutory decree of divorce the court awarded all of the community interest in the property, i. e., the Keith Avenue property, to respondent, which, of course, it had a right to do in a suit for divorce on the ground of cruelty, whereupon the entire property became the property of the respondent.” Of course, a mere attempt by respondent's husband to defraud her will avail her nothing against appellant.

As to the suggestion that the deed was without consideration other than that the mother should hold the title for convenience, the record shows no agreement on her part to so hold it, but only that Lester H. Strong had told his wife he was making the deed to his mother for convenience. Nothing was said about the nature of the convenience or whose convenience was being served. On the other hand, the evidence is undisputed that the property was encumbered when deeded to appellant and that as a part of the consideration for the transfer she conveyed to her son by deeds dated, respectively, May 16, 1932, and May 20, 1932, and recorded May 25, 1932, two other parcels of real property, which were unencumbered and which exceeded in value the property in dispute. It may also be mentioned that there was no pleading of a want of consideration. This was required if the point was to be made available to defendant. Pastene v. Pardini, 135 Cal. 431, 67 P. 681.

The argument advanced by respondent assumes that because Lester H. Strong told his wife the deed to his mother was being made merely for convenience, it follows that title remained in him regardless of the name in which it stood and for that reason the interlocutory decree in the divorce action vested the title in respondent. This position is not sound. In the first place, what Lester H. Strong told his wife out of the presence of appellant and without her knowledge is not binding upon her. Secondly, appellant was not a party to nor bound by the decree in the divorce proceeding. Since the nature of the convenience was not proven, nor that appellant ever accepted the transfer except absolutely and in consideration of her conveyance of valuable unencumbered real property in exchange, it does not even appear that any beneficial interest or equity remained in Lester H. Strong as community property or at all. Finally, if some equitable interest had remained in him, or in him and the respondent, that is all that the interlocutory decree would have operated upon; the legal title would still have been vested in appellant, and there would have been no justification for the decree quieting title against her. No issue was tendered as to any equitable title in respondent and if it had been, her title could not have been quieted against the holder of the legal title. It is settled that where a defense in an action to quiet title consists merely of a denial of plaintiff's ownership and the assertion of title in defendant, such defense is not established by proof that the plaintiff is the owner of the legal title subject to an equity in favor of the defendant or of a third person under whom he claims. Milliken v. Valencia, 47 Cal.App. 16, 189 P. 1049; Robinson v. Muir, 151 Cal. 118, 90 P. 521.

It is our opinion that the deed complied with the provisions of section 172a, Civil Code, as it applied in 1932 to community real property acquired in 1925 standing of record in the name of the husband alone. Even though the wife's joinder in his deed had been procured by his fraud, which we have seen has not been and could not in the state of the pleadings be herein established to defeat appellant's record title, the deed would not be treated as a nullity but as his sole deed subject only to being avoided by action commenced within one year from the filing for record of the instrument in the recorder's office of the county in which the land is situate. No action of this sort was ever taken. Maxwell v. Carlon, supra.

Appellant has raised several other points which we deem it unnecessary to notice in detail as the matters already discussed are determinative of the appeal.

We have carefully considered the argument and authorities relied upon by respondent in respect to subjects which we have not specifically touched upon and find no merit in them.

For the reasons stated it is ordered that the judgment be reversed. The cause is remanded with directions to the court below to enter a decree quieting plaintiff's title.

COMSTOCK, Justice pro tem.

THOMPSON, Acting P. J., and TUTTLE, J., concurred.