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District Court of Appeal, First District, Division 1, California.


Civ. 13144.

Decided: January 21, 1947

Wm. G. Condron, of Los Angeles, and Wm. H. Kiler and Wm. Penn Humphreys, both of San Francisco, for appellant. Tobin & Tobin and Raymond J. Arata, all of San Francisco, for respondents.

Plaintiff filed an amended complaint designated as a complaint ‘To Impress Trust on Real and Personal Property and to Recover Possession Thereof.’ Defendants filed an answer to the amended complaint and subsequently a motion for a summary judgment. The trial court rendered judgment in their favor and set forth therein that the court had found ‘that there is no triable issue of fact * * *, and that the above entitled action has no merit’; thereupon the court ordered the amended complaint dismissed. Code of Civil Procedure, sec. 437c.

The amended complaint and other pleadings contain the following allegations: That Mary Reiner, often referred to as Marie, Mariska or Marka, is the widow of Alois Reiner, sometimes known as Louis or Luis Reiner; that Reiner died on May 4, 1943; that his last will, dated November 12, 1941, in which he devised and bequeathed certain property to Rudolph P. Hermann, was admitted to probate; that on May 28, 1943, Milan Dulik was appointed, and qualified as executor of the last will and testament; that the property is still subject to administration, and has not yet been distributed; that Reiner was the owner in fee simple and was in the uninterrupted possession ‘up to the date of his death’ of a certain described lot and the improvements thereon, and the personal property in a flat occupied by him on Page Street in San Francisco. Reiner married his first wife, the sister of Mary, prior to 1906; Anna died in 1937. Mary Reiner had married George Biescar and lived in Los Angeles. Biescar died in December 1937. Mary Biescar married Alois Reiner at Riverside on May 18, 1940. According to the amended complaint seven days after the marriage he made a holographic will wherein he devised and bequeathed the property in question, the flats, to appellant Mary. From May 18, 1940, the date of the marriage, until June 12, 1940, Alois Reiner and Mary lived at her home in the City of Los Angeles. On the latter date they separated and Alois returned to the San Francisco flat. Thereafter they lived apart. On November 12, 1941, Alois revoked all former wills and devised the property, which is the subject of this action, to Rudolph P. Hermann, one of the defendants herein. Prior to his marriage to plaintiff, and on September 20, 1938, Reiner wrote a letter in the Czechoslovakian language to the then Mary Biescar, who could read, write and speak that language. The letter reads in part:

‘Dear Dear and Dear Marka What would I not give, if on the anniversary of your birthday, love would lend me wings to fly to you. This is but a thought, but it fills me with delight. How happy am I that I know you be mine. My dear Marie it not a dream not an illusion, that you are to me all world can offer. This conviction fills my heart with joy and urges me to send you best wishes for health and happiness and wellbeing. * * * I am just struggling to spend contently those few years I still have. * * *

‘But you know what the best will be if you come here. I have the house but no housewife so you can have the house after your sister and me with it. The garden is getting dry. I have nice roses but they are already wilted. My red cat needs a cook. He is very particular and I don't cook according to his taste.

‘So write me a love letter how you like me and send me a few kisses so that my monk's life would be sweetened * * * With hearty greetings and I am nicely hugging you and kissing you on both cheeks and your little mouth * * * Respectfully yours your loyal Luis.’

This letter is relied upon by Mary Reiner, the plaintiff, to prove that an offer was made by Alois Reiner to give certain real property to her if she should marry him. The execution and translation of the letter are admitted by respondents for the purpose of the disposition of the motion for summary judgment. Code of Civil Procedure, sec. 437c, provides that, upon a motion, a complaint may be dismissed and judgment entered for the defendant after an answer has been filed, in the discretion of the court, if it appears that the action has no merit. Likewise, the court may use its discretion and enter judgment for plaintiff when it appears that there is no defense to the action. The section provides that the motion may be granted ‘In an action to recover * * * an unliquidated debt or demand for a sum of money only arising on a contract express or implied in fact or in law or to recover possession of specific real or personal property or for specific performance of a contract in writing for the sale or purchase of property * * * if it is claimed that there is no defense to the action or that the action has no merit, on motion of either party * * *.’ There is a provision designating the proper legal notice and the motion may be supported by affidavits from either side, which may show facts which may be deemed sufficient to dispose of the motion. The section further provides: ‘The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.’

The trial court had before it the pleadings, including the letter and certain affidavits. Plaintiff furnished the translation of the letter. The rule is that when the language of a purported contract is doubtful, parol evidence may be admitted to explain the circumstances under which it was made. Code of Civil Procedure, sec. 1860, confers this right of construction on the ‘Judge’ who is ‘Placed in the position of those whose language he is to interpret.’

Passing from the preliminary to the primary or principal question involved, this court is now confronted with the identical legal question presented to the trial court, namely, has plaintiff failed to allege sufficient facts so that, as a matter of law, her complaint fails to allege an enforceable contract between her and Alois. This is not a case wherein there is no issue of fact, and the appellate court is permitted to make a final determination in accordance with its own views on the applicable principles of law involved in the construction of a contract. Estate of Platt, 21 Cal.2d 343, 131 P.2d 825; Moore v. Wood, 26 Cal.2d 621, 160 P.2d 772; Western Coal & Mining Co. v. Jones, 27 Cal.2d 819, 167 P.2d 719, 164 A.L.R. 685. Assuming that there are many circumstances alleged in the pleadings and affidavits which would indicate, and perhaps prove, that whatever offers were made by Alois were not accepted by Mary, or that the delay in the performance of the marriage contract negatived the offer as the basis of consideration, or that the acceptance of Alois by Mary as her husband was negatived by her neglect or refusal, whichever it may have been, to live with him in San Francisco, the home of Alois, these circumstances all present questions, not of law but of fact. These are matters of defense and should have been referred to the trier of facts.

In addition, attention should be called to the fact that some of the affidavits contain hearsay statements, as to which ordinarily witnesses are not competent to testify. A recognized exception to the hearsay rule is that the mental or physical condition of a person is often material in determining an issue, and that declarations of such a state or condition are admissible. ‘A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.’ Civil Code, sec. 1647. If the statements are of past events, and not declarations of the intentions of the parties at the particular time or within a reasonable time of the execution of the contract, the statements are not competent as proof of mental feeling. Estate of Carson, 184 Cal. 437, 194 P. 5, 17 A.L.R. 239. Where the evidence is remote to the extent that it may be prejudicial, it should be excluded (Estate of Anderson, 185 Cal. 700, 198 P. 407; Shea v. Leonis, 29 Cal.App.2d 184, 84 P.2d 277) on a motion for summary judgment. This court cannot determine, as a matter of law, whether such hearsay evidence is or is not admissible. That can only be determined at the trial.

The affidavits disagree respecting the cause of separation, which occurred twenty-five days after the marriage. The marriage date is alleged to be May 18, 1940. The letter upon which this action is based is dated September 20, 1938. Assuming, but not deciding, that Mary accepted in 1940 the offer of Alois made in 1938 to marry, still there is a disagreement relative to the cause of the failure of the parties to live in Alois' San Francisco home, which was one of the considerations stated by Alois in the original offer to marry. Plaintiff contends that her failure to live in the Page Street property was due to Reiner's desertion of her in Los Angeles. This presented an issue of fact. In Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62, 64, the court stated: ‘Thus, in passing upon a motion for summary judgment, the primary duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it is then powerless to proceed further, but must allow such issue to be tried by a jury unless a jury trial is waived. By an unbroken line of decision in this state since the date of the original enactment of section 437c, the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns.’ See, also, Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264; Hardy v. Hardy, 23 Cal.2d 244, 143 P.2d 701; Loveland v. City of Oakland, 69 Cal.App.2d 399, 159 P.2d 70; Gibson v. De La Salle Institute, 66 Cal.App.2d 609, 152 P.2d 774.

It may be assumed, but only for the purpose of disposing of the present appeal, that the letter was an offer for a marriage settlement. The letter was not acknowledged. ‘All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved.’ Civil Code, sec. 178. It is necessary to treat the lack of acknowledgment of the purported contract for a marriage settlement in like manner as a grant of land. ‘In California the acknowledgment of a deed is not essential to its validity. The acknowledgment of a deed is merely evidentiary in character and is required only to entitle it to be recorded so as to render it competent evidence of the conveyance without further proof. Williston v. City of Yuba City, 1 Cal.App.2d 166, 171, 36 P.2d 445; Kimbro v. Kimbro, 199 Cal. 344, 249 P. 180; Dutton v. Locke-Paddon, 37 Cal.App. 693, 174 P. 674; 9 Cal.Jur. 113, sec. 18. [p.]’ Osterberg v. Osterberg, 68 Cal.App.2d 254, 262, 156 P.2d 46, 50; see, also, Ogg v. Gunderson, 74 Cal.App.2d 384, 168 P.2d 793.

In support of their position defendants cite 1 Hittell, 3576, the predecessor of Civil Code sec. 178, as construed in Estate of Patton, Mr. Prob., 241. The Patton case holds that, as the purported marriage settlement was not acknowledged or proved before the marriage, it had no validity as a marriage contract. In the Patton case, the document was acknowledged some years after marriage, but the court refused to enforce it. The probate department of the City and County of San Francisco in 1879, as set forth in Myrick's Probate Reports, presented a method of procedure which has been subsequently approved by other trial judges, but the rules announced served only ‘until the higher tribunal has given a more authoritative decision.’ See Prefatory in Myrick's Probate Reports, p. IX. The rule of the Patton case is not convincing. The court is of the opinion, as already held, that the rule applicable to deeds applies to this situation, and that, as between the parties, failure to acknowledge is immaterial.

The agreement lost nothing in legal force because it was unrecorded. The recording or non-recording of a marriage contract as to interest in the property of a spouse ‘Has a like effect as * * * a grant of real property.’ Civil Code, sec. 180. Estate of Cutting, 174 Cal. 104, 161 P. 1137, did not involve an omission to acknowledge a marriage settlement contract, but the effect of non-recordation. It the Cutting case, 174 Cal. at page 109, 161 P. at page 1138, it was stated: ‘* * * It makes no difference that there was no recordation of the instrument, even if it be labeled a ‘marriage settlement,’ Section 178 et seq. of the Civil Code relate merely to the rights of creditors and of others who might have interest in real property involved in any such settlement. By section 180, [of the] Civil Code, the rule is announced that the recording or failure to record such a document has like effect as the recording or nonrecording of a grant of real property. Such a grant is of full force as between the parties, regardless of the question of recordation.' See Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24.

Respondents contend that, despite the lack of acknowledgment, the letter is insufficient under the Statute of Frauds. This contention does not appear definitely in the pleadings. Apparently plaintiff's suit is based on a written document. Civil Code, sec. 1624. The issue of the Statute of Frauds should not be raised for the first time on appeal. The complaint may have been demurrable on some special ground, but it stated facts which gave the trial court jurisdiction.

It is true the complaint alleges that the executor of the estate holds the rents collected, in trust, for the benefit of Mary, but the basis of the action is to force Rudolph P. Hermann to convey the real property to Mary. Wothout a conveyance from Hermann to Mary, or an order directing the executor to convey the property, or a ruling that such an order be made in the final distribution of the estate, the executor would have no authority to transfer the rentals to Mary. In brief, the purpose of the present action is to recover possession of the real property. A possessory action to recover real property may be instituted within five years. Code of Civil Procedure, sec. 318. In view of the conclusion reached, other points presented by appellant need not be considered.

The summary judgment is reversed.

WARD, Justice.

PETERS, P. J., and SCHOTTKY, J. pro tem., concur.

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