TOMAIER v. TOMAIER (1943)

This is an action for divorce. The complaint alleges, among other things, that the parties are the owners of certain described properties “all of which property is the community property” of the parties. Several parcels of property are then described and with respect to three of the parcels a description of the property is followed by “which property is held in joint tenancy”. On a former appeal this court affirmed that part of the judgment granting the plaintiff a divorce, but reversed that part by which it was adjudged that the three parcels of this property which were alleged to be held in joint tenancy were the community property of the parties and which awarded the major portion thereof to the plaintiff. Tomaier v. Tomaier, 50 Cal.App.2d 516, 123 P.2d 548. This court there held that the trial court had no power to divide the property held in joint tenancy as though it were, in fact, community property. In that decision it was further observed, without holding that such evidence would have been proper, that there was no evidence in the record of any intention of the parties that the property should be held other than in joint tenancy.

On a retrial of the action, with respect to the property rights of the parties, the court sustained objections to all questions directed toward disclosing the source of the funds which went into the purchase of these three properties which were alleged to be held in joint tenancy, or with respect to the intention of the plaintiff at the time of and in connection with the taking of title in this form and the creation of these joint tenancies, respectively. Plaintiff's counsel also offered to prove, with respect to one of these properties, that it was purchased long after these parties were married; that at that time the parties had no funds except such as came from their earnings or the earnings of the plaintiff; that, thereafter, they borrowed money to improve the property or to pay carrying charges on the credit of the parties or on the credit of the plaintiff; that all such subsequent borrowings and costs were community property; that there was no understanding or agreement at any time that such obligations or moneys were to be “other than such as commonly occur in the relations of husband and wife”; and that there was no understanding that the wife was to have any part of these earnings as her separate property. An objection to the offer of proof was sustained. Findings were waived, and the court adjudged and decreed that each of the three parcels in question “is not community property of the parties but is jointly owned by the plaintiff and the defendant as joint tenants.” The plaintiff has appealed from that part of the judgment.

As stated by the plaintiff, the sole question presented is “whether, in a divorce case, parol evidence is admissible to show that property standing in the name of the husband and wife as joint tenants is, in fact, community property.” The plaintiff relies particularly upon Siberell v. Siberell, 214 Cal. 767, 7 P.2d 1003, and Delanoy v. Delanoy, 216 Cal. 23, 13 P.2d 513. It is argued that in the Siberell case the essential holding is that the trial court did have power to find that property held as joint tenants was nevertheless community property and that the court there affirmed the judgment which decreed that the real property thus held in joint tenancy was, in fact, community property.

As we read that case, it holds that the property in question was held by the parties in joint tenancy and not as their community property. While, apparently, there was no evidence in the record relating to the intention of the parties at the time the property was thus acquired the court pointed out that from the very nature of the estates a community estate and a joint tenancy cannot exist at the same time as to the same property. The court then said [[[[214 Cal. 767, 7 P.2d 1005]:

“The use of community funds to purchase the property and the taking of title thereto in the name of the spouses as joint tenants is tantamount to a binding agreement between them that the same shall not thereafter be held community property, but instead as a joint tenancy with all the characteristics of such an estate. It would be manifestly inequitable and a subversion of the rights of both husband and wife to have them in good faith enter into a valid engagement of this character and, following the demise of either, to have a contention made that his or her share in the property was held for the community, thus bringing into operation the law of descent, administration, rights of creditors, and other complications which would defeat the right of survivorship, the chief incident of the law of joint tenancy. A joint tenancy is one estate, and in it the rights of the spouses are identical and coextensive.

“* * * it seems to us to be clear, as already pointed out above, that a joint tenancy, the evidence of which the law requires to be on the face of the conveyance creating it, is of necessity an expression of the intention to hold the property otherwise than as community property, and that the equal interest of the spouses must therefore be classed as their separate but joint estate in the property.”

After commenting on certain cases the court then said: “It is to be noted that, as between husband and wife and third persons, they were not permitted to gainsay their joint act by introducing evidence at variance with their agreement.”

After thus holding with respect to the property which had been acquired in joint tenancy by the parties in 1913 the court further discussed the effect of a deed executed in 1918 by which the husband purported to grant the whole of the property to the wife. In that connection, the court states that the testimony with reference to the circumstances under which the deed of 1918 was executed is sufficient evidence to support the finding that the property was community property. This is given as an additional reason why the judgment dividing the property equally between the spouses except for an additional burden placed on the husband in connection with a mortgage, should not be disturbed. The judgment was then affirmed because it clearly appeared that the wife had suffered no injustice and since a new trial of the action could not benefit her. In saying that certain evidence in connection with the deed of 1918 was sufficient to support the finding that the property was community property the court was discussing the effect of the 1918 deed from the husband to the wife, and not only was this merely advanced as an additional reason disclosing that the judgment of the court was just and correct under any view of the case, but we think it was not intended thereby to nullify all that had theretofore been said about the effect of the creation of this joint tenancy and the holding in that connection which was the main ground of the decision.

In the subsequent case of Delanoy v. Delanoy, supra [[[216 Cal. 23, 13 P.2d 514], the court said: “This court has recently determined that, in the absence of any evidence of an intent to the contrary, when property is purchased with community funds and the title is taken in the name of the husband and wife as joint tenants, the community interest must be deemed severed by consent, and the interest of each spouse therein is separate property. Siberell v. Siberell, [214 Cal. 767], 7 P.2d 1003.”

The plaintiff here argues that this use of the phrase “in the absence of any evidence of an intent to the contrary” directly implies that in spite of the fact that property is held by a husband and wife in joint tenancy evidence may be received as to the intention of the parties at the time of and in connection with the creation of that joint tenancy for the purpose of showing that, in fact, they intended that the property should be held as community property and not in joint tenancy. While it is not entirely clear just what was intended by the use of that phrase it does appear that in that case, also, a deed had been executed by the husband five years after the property was acquired in joint tenancy. It may be that the court had in mind the possibility that although property was acquired and held in joint tenancy by a husband and wife they might, by subsequent agreement, change their tenancy interest into community property and that this might be established by evidence of an intention so to do. Be that as it may, the phrase we have quoted is dicta in that case. The qualification stated in the Delanoy case does not expressly appear in the Siberell case, and in the absence of a direct expression from the Supreme Court we do not feel that it should be taken as overruling the statements in the Siberell case with respect to the binding character of the agreement between the spouses in connection with the taking of title to property in joint tenancy. The intention of the parties in creating a joint tenancy is required by statute to be expressly declared in the instrument creating the same. Civ.Code, § 683. It is a well established principle of law that parties having agreed in writing to a certain thing may not at the same time and in connection with the same thing orally agree to a contrary effect. Cobbs v. Cobbs, 53 Cal.App.2d 780, 128 P.2d 373. A community estate and a joint tenancy are different and inconsistent estates and parties should not be allowed to prove by parol that in creating a joint tenancy through a written expression of their intention so to do, as required by law, they actually intended and agreed to create another estate which was inconsistent therewith.

If, as the plaintiff argues, it is possible for a husband and wife, having created a joint tenancy interest in certain property, to thereafter change this into community property and that oral evidence is admissible for the purpose of showing an intention to accomplish this result, we have no such situation before us. The complaint alleges nothing with respect to the properties in question other than that it is community property which is held in joint tenancy. There is no allegation of fraud or of any subsequent deed or agreement, or of any act or intention in connection therewith. The evidence and the offer of proof which appear in the record relate only to the situation and circumstances in connection with the acquiring of this property by the parties in joint tenancy. The sole question here presented is whether, under our law, parties who acquire property in joint tenancy, with the necessary written expression of their intention in that regard, are entitled to prove by oral evidence that they had no such intention but, in fact, intended to do something entirely different. This, we think, they may not do.

The judgment is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.