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District Court of Appeal, Second District, Division 2, California.


Civ. 16840.

Decided: April 19, 1950

Porter C. Blackburn and Shelby Lee Chambers, Los Angeles, for appellant. Chas. T. Rippy, Torrance, for respondent.

Appeal from an order denying motion for a different judgment on the ground that it is inconsistent with the findings and conclusions. Code Civ.Proc. secs. 663, 663a.

The court found that Paraschiva Socol, decedent, was married to Louis King in 1927; that at that time she had three minor children and resided, and in her own right owned improved business properties, in East Chicago, Indiana; that by reason of the depression she was forced to sell one property and contracted for the purchase of another place on Block Avenue and took the title in joint tenancy with her husband; that they operated a store on Block Avenue and with their net earnings and the income of decedent from her other property they supported the family and made the payments on the Block Avenue store; that in 1937 decedent visited California and purchased certain realty and a bowling alley; that the purchase money was obtained from the sales of their jointly owned Indiana property and of decedent's separate parcels; that the titles to all of them were taken in joint tenancy; that at the time it was decedent's belief that only one-half would belong to respondent and one-half to herself, which latter half at her death would go to her children; that decedent had entertained an erroneous opinion as to the legal effect of her titles but by virtue of the nature of the contract embodied in the joint tenancy deeds the court decided that respondent as surviving tenant was entitled to the properties in their entirety.

By her motion addressed to the court below and by this appeal, decedent's daughter as administratrix with will annexed of Paraschiva's estate seeks to substitute a favorable judgment for that part of the decree entered below which quiets respondent's titles to the $20,000 received from the sale of the bowling alley and to the two lots awarded to him. Her first contention is that the intention of decedent in causing titles of properties to be vested in joint tenancy with her husband governs the legal effect of the conveyances regardless of their form. She refers to finding 7 ‘That at the time of the purchase of the real and personal property in California by decedent in the joint names of herself and defendant, she believed that one-half of the property belonged to her and one-half * * * to defendant.’ She cites Huber v. Huber, 27 Cal.2d 784, 787, 167 P.2d 708, Salvater v. Salvater, 206 Cal. 657, 660, 275 P. 801, and Luminoso v. Luminoso, 75 Cal.App.2d 472, 473, 171 P.2d 516, in support of her thesis. Appellant thereby specified two hindrances to her effecting a reversal. In the first place the intention of decedent was a subject upon which no one but decedent herself could have testified. Since she had already passed on to her reward the court was without any competent evidence of her intention other than the deeds she took naming respondent as joint tenant with her. In the second place, Huber v. Huber, like many of the decisions therein cited, adjudicated the controversies between husband and wife with respect to the property rights of the husband who was present in court to testify as to his intention at the time he accepted a joint tenancy deed to property which he had purchased with his separate funds. Not only did he face his adversary for cross-examination but he produced other proof of his having used his separate funds to make the purchase in question.

Despite the unsupported finding as to decedent's belief that half of the California property would go to her children at her death, the court found that there was ‘no evidence of any understanding between the parties at the time of the purchase * * * that it would actually be treated as community property, the defendant not being present in California at that time * * * neither is there any evidence of any agreement between the parties subsequent to the purchase * * * that it was to be considered by them as community property.’ This and other findings1 lend liberal support to the judgment. They establish that decedent had some property at the time of her marriage to respondent; that in 1931 ‘the depression affected the decedent, and she was forced to sell the property at 3702 Block Avenue * * * and started purchasing on a contract other property located at 3740 Block Avenue * * * in the joint names of the deceased and the defendant.’ Thereafter they jointly operated the delicatessen store at the 3740 address and used the earnings from that business and from decedent's separate property on Columbus Drive, East Chicago, for payments on the store. Decedent did not acquire the California properties until 1937. She came alone to this state and made her purchases with funds received from the sale of the store jointly owned with respondent and earnings from her own Columbus Drive property.

That decedent knew the meaning of joint tenancy is fairly inferred from her use of it in Indiana and by accepting deeds of the same sort while alone in California when respondent was operating the business in East Chicago. This fact takes on added significance in the light of her having continued to hold the properties in joint tenancy until her decease. It is therefore evident that the greater part of the money invested by decedent in California was derived from the joint earnings and joint property which were so intermingled with decedent's separate funds that a segregation of them was not attempted by the court. Moreover, before appellant could make any headway in demonstrating that the California properties were acquired with decedent's separate funds she must have shown not only that the down payments were made with her separate funds but also the amount and origin of the sums subsequently paid by decedent and the amount paid by respondent after her death. There is no finding on either. Therefore, it cannot be said, as appellant contends, that the findings show decedent was in any manner a donor of the California property.

It is true that a probative finding declares that decedent had a ‘mistaken opinion’ of the law as to the legal effect of the California conveyances. But such finding is immaterial for the reasons that (1) the ultimate fact found is that appellant does not own one-half of the properties in question, (2) the funds invested in the California properties were not community funds and (3) respondent was owner of the properties acquired with such funds. If the moneys brought from Indiana were not community property after their investment here and if they were joint tenancy funds which had been commingled with decedent's separate moneys, how could any share of the properties acquired be designated as the separate property of decedent or as her share of a community estate in the absence of a finding of the amount of the separate interest or of the community interest of decedent?

The compelling fact remains that the titles were taken in joint tenancy. Without regard to the origin of the money used to acquire them the act of taking the titles in joint tenancy is tantamount to a sealed agreement that thereafter they should be held in joint tenancy with all the characteristics of such an estate. Siberell v. Siberell, 214 Cal. 767, 773, 7 P.2d 1003. This decision clearly establishes the nature and legal significance of a joint tenancy to be utterly contrary to a community estate or to a tenancy in common: on the death of a spouse, property jointly owned is no part of his estate. The distinguishing incident of the joint tenancy is the right of survivorship. By it one estate is created and that excludes a community ownership of any part of or interest in the property. Id., 214 Cal. at page 771, 7 P.2d 1003.

While the Siberell decision was published in 1932 the meaning of a joint tenancy has been long a familiar doctrine to the law, having been ‘founded, like the laws of primogeniture, on the principle of the aggregation of landed estates in the hands of a few and opposed to their division among many persons.’ De Witt v. City of San Francisco, 2 Cal. 289, 297. ‘A joint tenancy is one estate, and in it the rights of the spouses are identical and coextensive.’ Siberell v. Siberell, 214 Cal. at page 773, 7 P.2d at page 1005. In view of the facts that the significance of a joint tenancy is widely known and that decedent began the practice of using it in taking titles after her marriage to respondent, the deduction is unavoidable that she deliberately and with understanding took the titles in joint tenancy to all the properties purchased by her in California so that respondent's interest would be identical and coextensive with her own.

If appellant's contention should prevail there would be no dependability upon a joint tenancy. The heirs of a deceased person could by their hearsay testimony prove that the decedent had at the time of taking title in joint tenancy with his spouse cherished a secret intention not to create a joint tenancy. Where a wife has in the absence of her husband requested a joint tenancy deed to a property she has purchased she cannot defeat the contract which she has composed with her own hands by testimony of a hidden intention at the time of taking the joint tenancy deed. Watson v. Peyton, 10 Cal.2d 156, 158, 73 P.2d 906. It appears to be the rule that if no contract is made by spouses at the time of acquiring title, the true intention may be shown. Minnich v. Minnich, 127 Cal.App. 1, 15 P.2d 804. But if a deed contains a specific declaration as to the nature of the estate created, the recital is proof of the intention of the grantor and the purchaser and it can be repudiated only by evidence of fraud, mistake or undue influence. See Dale v. Dale, 87 Cal.App. 359, 363, 262 P. 339.

In view of the doctrine that a mistake of law on the part of one party to a contract in the absence of fraud is not ground for the avoidance thereof, Gardner v. Watson, 170 Cal. 570, 577, 150 P. 994, and of the findings that the parties never at any time agreed that the property would be treated at community assets and of the finding that the purchase money came from the sales of some property owned in joint tenancy and another owned by decedent in her separate right there is no relief for appellant from the judgment.

Order affirmed.


1.  Substance of Pertinent Findings1. Deceased and defendant were married in 1927 at East Chicago, Indiana.2. Prior to the marriage deceased owned lot 14 of the same city which she sold and with the proceeds purchased 3702 Block Avenue where she operated a delicatessen. At the time of her marriage she owned also lots 2 and 3, block 8, known as 1615 Columbus Drive.3. In 1931 the depression so affected decedent that she was forced to sell 3702 and contract for the purchase of 3740 Block Avenue. The latter she took in joint tenancy with defendant.4. Deceased and defendant jointly operated a delicatessen at 3740 Block Avenue. With the earnings therefrom and from the Columbus Drive property the family was supported and payments made on the 3740 Block Avenue place.5. While on a trip to California in 1937 decedent contracted for the purchase of property in San Fernando Valley and a bowling alley in Torrance. The purchase money came from the sales of the joint property in Indiana and from decedent's property on Columbus Drive.6. Deceased bequeathed all her separate property to her children. Her will was probated in Indiana.7. At the time of the purchase of the California property decedent believed that one-half of the property belonged to her and one-half to defendant; that her half would go to her children at her death. But there is no evidence of an understanding between deceased and defendant at the time of the California purchase that it would actually be treated as community property. Decedent was alone when she directed the kind of deed to be made to her and the kind of contract for the purchase of the personal property. Neither is there any proof of an agreement subsequent to the purchase that the California property was to be considered by them as community.8. Decedent held the interest of her children paramount. Her ultimate objective was to acquire property which she could leave to her children upon her death.9. After the death of decedent defendant sold the bowling alley for $20,000.10. Decedent entertained a mistaken opinion as to the law on the legal effect of the conveyances of the California property.11, 12 & 13. The station wagon and a part of the furniture at 4225 Ventura Canyon Avenue, Van Nuys, was purchased with the joint earnings but part of it was the separate property of decedent at death.17. It is not true that the estate of decedent is the owner and entitled to the possession of one-half interest in lots 1, 2 and 21; it is not true that defendant's claim of same one-half interest is without right; it is not true that the estate of decedent is entitled to the Plymouth station wagon, but that it was community property of decedent and defendant. Also, it is not true that the estate is entitled to the entire interest in the furniture and furnishings at 4225 Ventura Canyon Drive.

MOORE, Presiding Justice.

WILSON, J., concurs. McCOMB, J., concurs in the judgment.