Searles v. Searles

[870]

MOORE, P. J.

This appeal is on the judgment roll. Respondent was awarded a decree of divorce which quieted her title to a parcel of land in both herself and appellant as joint tenants. The latter now demands a reversal on the grounds that (1) findings were not made as to all material issues; (2) the conclusions and judgment are inconsistent with the findings.

While the divorce was granted on the grounds of extreme cruelty and nonsupport, no attack is made upon that part of the judgment. It was decreed that the property be sold by the commissioner named in the judgment and from the proceeds of sale, after paying costs and commissioner’s fee, $2,000 be paid to respondent to reimburse her for moneys paid out of her separate funds on the purchase.

As to the acquisition of the property respondent alleged that it was purchased by her at the price of $13,500,11 and $2000.00 of that sum was paid, in cash by plaintiff out of her separate property, and out of money borrowed by her and on the strength of her separate credit,” and that she allowed title to be taken in the names of both as joint tenants upon the promise of appellant to pay at least one-half of the unpaid balance; that he has not paid anything on the unpaid amount and while respondent has been required to make all monthly payments appellant frequently asserted that he would not “put a dime in the said property.” The court found such allegations to be true and that it was necessary for respondent to employ an attorney to prosecute her action and that she was without funds to pay attorney’s fees.

Appellant complains that there is no allegation or promise that respondent should be reimbursed the total of $2,000 and that there is no finding as to the portion of the $2,000 that was paid out of respondent’s separate funds or was borrowed on the strength of her personal credit. The answer to such contention is that the court found the ultimate fact that respondent made the “down payment of $2000 out of her sole and separate property. ’ ’ If she used her own property to borrow the $2,000, the money so borrowed was hers in separate ownership.

(Estate of Ellis,

203 Cal. 414, 416 [264 P. 743] ;