Chamberlain v. Chamberlain

JENNINGS, J.

Plaintiff instituted this action against her husband for the purpose of securing a decree of divorce. In her amended complaint she alleged that certain real property therein described had been conveyed to her and the defendant as joint tenants after their marriage and that certain described personal property was community property. The prayer of the pleading was for a dissolution of the marriage and for a division of the community property in such manner as the court might justly decide. Upon the conclusion of the trial the court found that all facts alleged in plaintiff’s amended complaint were true, that she was entitled to a decree of divorce from defendant, that she had a joint interest with defendant in the real property described in the amended complaint, and that she was entitled to a half-interest in the community property described in the amended complaint. In accordance with these findings an interlocutory judgment of divorce was entered wherein it was adjudged that plaintiff was entitled to a divorce and it was ordered that the community property “as set forth in plaintiff’s amended complaint be divided equally between plaintiff and defendant”. It was further adjudged that the plaintiff and defendant each have an equal half-interest in the real property described in plaintiff’s amended complaint. From the decree thus made and entered the defendant has prosecuted this appeal. Although the notice of appeal given by the defendant specifies that the appeal is taken from the whole of the judgment no attack is made upon that part of the decree whereby the court adjudged that plaintiff is entitled to a divorce from the defendant, the attack being limited to those portions of the decree whereby it is adjudged that plaintiff has an undivided one-half interest in the real property and that the community property de

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scribed in the amended complaint shall be divided equally between the parties.

In support of the appeal it is first contended that the trial court’s finding that respondent has a joint interest with appellant in the real property is entirely lacking in evidentiary support and that the decree in so far as it adjudges that each party to the action has an equal half interest in such real property is therefore erroneous.

Examination of the record herein indicates that the evidence with respect to the ownership of the real property which was presented to the trial court was conflicting. In support of the finding of joint tenancy certain documentary evidence was produced. This evidence consisted of a grant deed, an agreement for the sale of real estate and a bargain and sale deed. The first of the above-mentioned documents was executed subsequent to the marriage of appellant and respondent. By this deed Nathan Horn and his wife conveyed an undivided one-half interest in the land to T. N. Boner and Fannie Boner, as joint tenants, and the remaining undivided half-interest to L. R. Chamberlain and Valera Chamberlain, his wife, as joint tenants. The second instrument was executed on April 14, 1925, between T. N. Boner and Fannie Boner, denominated the “seller” and L. R. Chamberlain and Valera Chamberlain designated as the “buyer”. By it T. N. Boner and Fannie Boner agreed to sell and convey to L. R. Chamberlain and Valera Chamberlain an undivided one-half interest in the real property and to execute and deliver to the last-named parties “a good and sufficient deed of grant, bargain and sale to them as joint tenants with the right of survivorship”. The third instrument was a bargain and sale deed which was executed on August 10, 1926. By this deed T. N. Boner and Fannie Boner granted and conveyed to L. R. Chamberlain and Valera Chamberlain, husband and wife, as joint tenants, and not as tenants in common, and to the survivor of them an undivided one-half interest in the real property.