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


Civ. 18568.

Decided: December 11, 1951

Eugene L. Wolver, Los Angeles, for appellant. Henshey & Beeman, Hollywood, for respondent Catherine E. Lazzarevich.

From a judgment in favor of defendant after trial before the court without a jury in an action seeking to set aside a conveyance of a one-half interest in real property on the ground of failure of consideration and denying plaintiff partition of real property held as a joint tenant with defendant Catherine E. Lazzarevich (hereinafter referred to as defendant), plaintiff appeals.

Facts: The factual background of the action is contained in Copple v. Lazzarevich, Cal.App., 238 P.2d 612.

After learning that the final decree of divorce had been entered, litigation ensued between plaintiff and defendant resulting in a final decision in Lazzarevich v. Lazzarevich, 88 Cal.App.2d 708, 200 P.2d 49. On March 24, 1949, plaintiff filed the present action, (1) seeking to set aside the conveyance of the one-half interest he had conveyed to defendant on the ground of a failure of consideration, and (2) in the event such relief should be denied, asking that the property be partitioned, and he be afforded an accounting of the proceeds of the property as a cotenant.

The trial court denied plaintiff relief, finding that the first cause of action was barred by the statute of limitations (Section 338, subd. 4, Code of Civ.Proc.)* and that plaintiff was estopped from maintaining the second cause of action.

Questions: First: Was plaintiff's cause of action barred by the provisions of section 338, Subdivision 4 of the Code of Civil Procedure?

Yes. Plaintiff alleged in paragraph III of his complaint that he learned on August 10, 1945, that a final decree of divorce from defendant had been entered on September 6, 1933. The present action was filed March 24, 1949. Therefore more than three years elapsed between the time plaintiff admits he knew of the facts constituting the mistake upon which his first cause of action was predicated and the date he instituted the instant suit. Therefore his first cause of action was barred by the provisions of section 338, subdivision 4 of the Code of Civil Procedure.

Second: Was plaintiff estopped to maintain his second cause of action for a partition of the property which he held in joint tenancy with defendant?

Yes. The evidence discloses and the trial court found that at the time of the present action plaintiff was indebted to defendant in the sum of $11,325.03 with interest.

An action for partition is essentially an action in equity and a court of equity will not decree partition and an accounting where the evidence discloses that the one who seeks equity has not done equity. (Ventre v. Tiscornia, 23 Cal.App. 598, 604 et seq., 138 P. 954.)

In this case the record discloses that plaintiff was indebted to defendant on account of a judgment obtained by her against him in the sum of $11,325.03, together with interest from March 3, 1949, and that only about $200 had been paid by plaintiff to defendant on account thereof. Such finding was sufficient ground for denying a partition of the real property which plaintiff held in joint tenancy with his former wife.



FOOTNOTE.  Section 338, Subdivision 4 of the Code of Civil Procedure reads: ‘Within three years: * * * 4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’

McCOMB, Justice.

MOORE, P. J., concurs.

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