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District Court of Appeal, Second District, Division 3, California.


Civ. 15618.

Decided: June 04, 1947

John W. Preston and David L. Sefman, both of Los Angeles, for appellant. Don Lake, of Los Angeles, for respondent.

Plaintiff brought this action for a divorce against defendant by a complaint setting forth two causes of action. The first charges defendant with the commission of numerous acts of adultery with a named corespondent, and the second, in general terms only, as is permitted by section 426b of the Code of Civil Procedure, with the commission of acts of extreme cruelty. The complaint further alleges that the parties are possessed of community real and personal property, including certain ranch acreage situate near Lancaster, in the County of Los Angeles, and that this ranch property was purchased from the earnings of plaintiff.

The defendant filed an answer to the complaint denying its allegations, and a cross-complaint charging the plaintiff, in general terms, with the commission of acts of extreme cruelty toward defendant. The cross-complaint further alleges that there is community property belonging to the parties consisting of cash, in the possession of plaintiff, and real property situate in Los Angeles, title to which is in plaintiff; that the parties own, as tenants in common, the Lancaster ranch property described in the complaint. Subsequent thereto, defendant filed an amended cross-complaint for divorce alleging, in paragraph V thereof, specific acts of extreme cruelty on the part of the plaintiff, and again alleging the existence of community property, and that the said ranch property is owned by the parties as tenants in common. The amended cross-complaint prays for a divorce from plaintiff, for an award to cross-complaint of all of the community property, for an accounting, and other relief. Plaintiff answered said amended cross-complaint denying all of the material allegations thereof, again alleging said ranch property to be the community property of the parties hereto.

At the trial evidence was offered by all parties to the action and the court orally indicated its intention to find for plaintiff on her second cause of action, but for defendant and the corespondent on her first cause of action for adultery.

Upon submission of the proposed findings of fact and conclusions of law, defendant filed his written objections to the proposed findings on the ground, in part, that such proposed findings did not cover specific facts as to the issue of extreme cruelty and requested the court to comply with section 632 of the Code of Civil Procedure and make specific findings as to the acts relied upon as constituting this ground for a divorce. The court failed and refused to make specific findings as requested, but on such issue of extreme cruelty found, in general terms, that the allegations contained in paragraph II of the second cause of action in plaintiff's complaint were true and those in paragraph V of the amended cross-complaint were untrue. The court further found, in general terms, that the allegations contained in paragraph V of plaintiff's complaint were true, reference to the complaint indicating that therein the plaintiff described and claimed as community property the ranch acreage near Lancaster, California.

The court rendered judgment for plaintiff, granting her an interlocutory decree of divorce from the defendant and, with the exception of $2,500 which was awarded to defendant, awarded all community property, including said ranch property, to plaintiff. From said judgment, and the whole thereof, the defendant now appeals.

Section 131, Civil Code, declares: ‘In actions for divorce, the court must file its decision and conclusions of law as in other cases * * *.’ As to ‘other cases,’ section 632, Code of Civil Procedure, in part, declares: ‘In superior courts * * * upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision. In giving the decision, the facts found and the conclusions of law must be separately stated.’

As was said in Bilger v. Bilger, 1942, 54 Cal.App.2d 739, 740, 129 P.2d 752, 753: ‘In interpreting said section 131 of the Civil Code it has been held that the requirement that findings be made ‘as in other cases' demanded that there be specific findings as to the acts relied on as grounds for divorce, since whether or not those acts had been committed was the material issue of fact in such cases,’ citing Franklin v. Franklin, 1903, 140 Cal. 607, 74 P. 155, and other cases. By rejecting the request for specific findings and the making instead of general findings as to the respective causes of action for extreme cruelty, a situation was created whereby no findings of fact were made but, instead, mere conclusions of law were stated. The basic question as to whether defendant had committed all, part, or none of the acts relied upon by plaintiff as constituting extreme cruelty was left open and undecided. As was further said in Bilger v. Bilger, supra, 54 Cal.App.2d at page 742, 129 P.2d at page 754: ‘[T]he appellant, in order to present the merits of her appeal, was entitled, under the law, to definite findings from which it could be determined whether the trial court disbelieved her testimony concerning her husband's acts and conduct and denied the divorce on that ground, or did believe her testimony but nevertheless concluded that such acts and conduct did not constitute extreme cruelty.’ See Del Ruth v. Del Ruth, 1946, 75 Cal.App.2d 638, 644, 171 P.2d 34. The same rule applies here in that the defendant herein, in order to have the merits of his appeal properly presented and the sufficiency of the evidence to support the judgment weighed, is entitled to have a finding as to which act or acts upon his part amounted to extreme cruelty to his wife, and whether or not the trial judge believed his denials as to such acts or conduct. He was likewise entitled to know, by specific findings, whether his testimony as to the acts and conduct of his wife, as specifically alleged in his cross-complaint, was disbelieved by the trial judge or whether, in believing such testimony the court nevertheless held such evidence to fall short of actionable extreme cruelty.

It is next contended by defendant that the trial court erred in finding the ranch property near Lancaster to be community property and in awarding it to plaintiff, since it was owned by plaintiff and defendant as joint tenants or tenants in common. The evidence discloses that title to this property was originally taken in the names of the plaintiff and defendant, as joint tenants, by recorded deed dated April 30, 1943, and that title of record still so remains.

In the absence of evidence showing that a husband and wife who took title to property as joint tenants actually intended it to be community property, it must be considered that their intention was to create such a common law estate. Civ.Code, sec. 683. Evidence may be admitted, however, ‘to establish that real property is community property, even though title has been acquired under a deed executed in a form that ordinarily creates in the grantee a common law estate with incidents unlike those under the law of community property. * * * Again, it may be shown that husband and wife intended to take property as community property even though they accepted a deed drawn to them as tenants in common. * * * It has in fact been held unequivocally that evidence is admissible to show that husband and wife who took property as joint tenants actually intended it to be community property. * * * Such rulings are designed to prevent the use of common law forms of conveyance to alter the community character of real property contrary to the intention of the parties. Moreover, it is well settled that property may be converted into community property at any time by oral agreement between the spouses [citing cases], and an agreement at the time the property is acquired has the same effect.’ Tomaier v. Tomaier, 1944, 23 Cal.2d 754, 757, 758, 146 P.2d 905, 906.

Evidence was offered by plaintiff to show that a substantial part of the purchase price of the ranch property came from her separate funds and that, shortly prior to the escrow transaction for its purchase, defendant suggested to her that the property would be owned by them as community property ‘but that in the event of anything happening to either one of us it would be better to put it into joint tenancy, so as to save going through probate.’

‘Q. But he said that it would remain your community property? A. Community property.

‘Q. And what did you say to that? A. I agreed to that.’

While denying any agreement on his part that the ranch property was to be held by them as community property defendant did testify that, when they were married they decided that everything would be fifty-fifty. Defendant further denied that plaintiff had furnished most of the purchase funds for this property and claimed that he contributed approximately one-half, either by his separate funds or by earnings from the ranch itself. From the foregoing evidence the trial judge, as the trier of fact, was entitled to find that plaintiff and defendant actually intended to and did take such property as community property even though they took record title as joint tenants.

Our attention has been directed to no evidence showing any intention upon the part of the plaintiff and defendant herein to subsequently convert title thereto from its status as community property to one whereby the parties held it as tenants in common unless a proposed property settlement agreement wherein such term is used may be so considered.

The record discloses that, differences having arisen between the parties, plaintiff suggested to defendant dividing the property and making a property settlement agreement. Defendant's attorney then prepared and defendant signed, in duplicate, a proposed property agreement which read, in part, as follows:

‘Whereas, the parties now have a desire to settle, fix and determine forever their community property rights; and

‘Whereas, the parties have agreed upon a full and complete settlement of their property rights and other obligations arising out of and because of their marital relations; * * * it is mutually agreed as follows: * * * 4. That both parties own as community property a certain ranch located in Lancaster, California. That it is hereby agreed between the parties hereto that said ranch, its improvements and equipment shall be sold at any price agreed upon by the parties, and the net proceeds derived from the sale of said ranch shall be divided equally, share and share alike, between the parties hereto. In the interim said property shall be held as tenants in common, each holding an undivided one-half interest in the same.’ (Italics ours.)

The two copies of the agreement signed by defendant were then delivered to Mr. Paul Cote, plaintiff's attorney. Plaintiff signed both such copies but at all times thereafter retained possession thereof, one being kept by her and the other by her attorney, Mr. Cote. No delivery of an executed copy of the agreement was ever made to either defendant or his counsel. On November 8, 1945, a registered letter was addressed to plaintiff, signed by Mr. David L. Sefman, attorney for defendant, as follows:

‘At the request of my client, Mr. Jack C. LaMar, I am directing this letter to you concerning that proposed property settlement agreement between yourself and Mrs. LaMar, which was prepared in August, 1945.

‘You are hereby notified that Mr. LaMar hereby gives you notice of revocation of the proposed agreement above referred to, by reason of the fact that said agreement was never accepted to this date, and for other reasons not herein specifically designated.’

Notwithstanding his notice of revocation defendant now relies upon the proposed property agreement as a binding contract between the parties whereby the status of the property, as either community or joint tenancy owned, has been converted into ownership by them as tenants in common. He points to those portions of the agreement which we have italicized in his claim that, even though the parties in the same paragraph refer to it as community property owned by them, the subsequent sentence providing that in the interim it shall be held as tenants in common, each holding an undivided one-half interest in the same, accomplishes such a change in character of ownership.

At the trial defendant, through his counsel, took the position that the property agreement, although signed by plaintiff, was never delivered to defendant ‘as required by the provisions of the Civil Code,’ but remained in her own possession and that therefore no executed and binding agreement wa ever reached by the parties. He further contended that the contract as signed and delivered by him to plaintiff constituted a mere offer or proposal and, not having been accepted, was revoked by the letter of November 8, 1945. He now argues on appeal that the agreement was fully executed by the mere signing thereof, even though no delivery of such a signed copy was ever made by plaintiff to defendant and, having been so fully executed, was not revoked by the above-mentioned revocation letter. The position taken by defendant at the trial was the correct one and that now advanced by him on appeal cannot be sustained.

A contract to convey land, executed in duplicate, is in effect one instrument, which does not take effect until one of the duplicates is finally delivered to the party to whom the land is to be conveyed. None was here delivered to defendant but each of the duplicates was kept within the power and control of plaintiff by its retention by her and her attorney. Without such delivery the acceptance and execution of the proposed contract was not complete. Ivey v. Kern County Land Co., 1896, 115 Cal. 196, 201, 46 P. 926; 17 C.J.S., Contracts, § 45, p. 387. The consent of the parties to a contract must be communicated by each to the other (Civ.Code, sec. 1565), and a contract in writing takes effect upon its delivery to the party in whose favor it is made, or his agent. Civ.Code, sec. 1626. The same rule applies to a grant of property. Civ.Code, sec. 1054. Delivery fo the proposed property agreement never having been made by plaintiff to defendant, ‘the agreement was inchoate and incomplete and never became effective.’ McKinney v. Sargent, 1932, 216 Cal. 18, 22, 13 P.2d 373, 374. ‘Without delivery, it is a mere scrap of paper, and is ineffective for any purpose.’ Hudemann v. Dodson, 1932, 215 Cal. 3, 6, 7 P.2d 997, 998. See Hurlbut v. Quigley, 1919, 180 Cal. 265, 272, 180 P. 613.

No acceptance by plaintiff of defendant's proposal to contract having been communicated to the latter, such proposal was revocable by defendant by the communication of a notice of revocation. Civ.Code, secs. 1586, 1587. Defendant's letter of November 8, 1945, to plaintiff, constituted such a notice and accomplished a complete revocation of his proposal to enter into a property agreement. Such being the case the proffered agreement became a nullity and its provisions have no binding effect either upon the parties or the involved property whatsoever. The court's finding that the ranch in question was community property, therefore, remains unaffected by the proposal to hold the property as tenants in common in the interim pending its sale.

The judgment is reversed.

KINCAID, Justice pro tem.

SHINN, Acting P. J., and WOOD, J., concur.