Newell v. Brawner

SHINN, P. J.

This is an action in claim and delivery brought by Newell against his father-in-law Brawner for the recovery of household furniture and furnishings and damages for their detention. Plaintiff had judgment for possession or for $6,240, the value of the property, and damages for detention in the sum of $1,300. Plaintiff bases his right to possession upon the claim that the property was acquired by his former wife and himself as community property and that it was lawfully in his possession at the time it was taken from his home by the defendant. He also introduced in evidence a default decree of divorce from Gertrude B. Newell, defendant’s daughter, by which decree the property in question was found to be community property of the parties and was awarded to plaintiff in its entirety. Defendant claims title to the property upon two theories, first, that the major portion of the property belonged to himself and his wife and was loaned to their daughter for the use of herself and her children and as to this property and a small part of the remainder he claims under a bill of sale from his wife to himself of her interest in the property and also a bill of sale from the daughter. The

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court found that at the time defendant received his bill of sale from Gertrude and when he took possession of the property all the property involved was the community property of plaintiff and his then wife, Gertrude, and also found that thereafter in plaintiff’s action for divorce against Gertrude, plaintiff was awarded all the property in question.

It is apparent that if the evidence was sufficient to support the above finding of community ownership of plaintiff and his then wife, defendant could not prevail in the action. In his briefs defendant makes no attempt to set out the evidence bearing upon this issue. He merely assumes the truth of his own testimony that the property was only loaned to his daughter. This failure to state the evidence could well be regarded as an admission that the evidence was sufficient. However, we have read the record and are satisfied that the evidence in that respect was sufficient. To a large extent Mr. and Mrs. Brawner assisted their daughter and the plaintiff in the acquisition and furnishing of a home. They provided them with money in substantial amounts and except in minor particulars furnished their home either by providing them with furniture and other household equipment which they, the Brawners, owned or by purchasing new articles until the home was fully furnished and equipped. Mr. Brawner testified that all the larger and more valuable articles were merely loaned to their daughter for the use of herself and the three children during the time they should occupy the home in question and that he and Mrs. Brawner never intended to and never did part with title to any of the aforesaid articles. Other articles he testified were given to the daughter as her separate property ; he took a bill of sale from his daughter of all the property merely as a precaution against any claims of the plaintiff and as evidence that the daughter surrendered any rights she had to the use of the property as a loan from himself and wife. There was no writing to evidence the agreement that the property was merely loaned to the daughter. Upon the other hand, plaintiff testified that all the property they received from the Brawners was given to both his wife and himself; that Mrs. Brawner, who made most of the arrangements, so stated at numerous times, and that neither she nor Mr. Brawner ever made any statement to him to the contrary; there was never any agreement between himself and his wife that any of the articles received from the Brawners were given to the wife alone, but that they always regarded and treated the property as belonging to both of them. The real property was taken