Wardlow v. Pozzi

PEEK, J.

This is an appeal from a judgment sustaining a demurrer to plaintiff’s first amended complaint without leave

[209]

to amend in an action to quiet title and for declaratory relief.

In 1944 the defendant married the decedent, Walter M. Pozzi. In 1950 they took title as joint tenants to certain real property in Sonoma County, and on October 1, 1953, the property was leased to one Wilson for a term of five years. The lease granted Wilson an option to renew, and if lessors did not desire the land for their own use, he had the first refusal to purchase the same for the sum of $30,000.

In 1954 Nellie and Walter separated, and an action for divorce was commenced by her. Prior to the institution of such action, a property settlement agreement was entered into between the parties, which agreement contained the following provisions:

“It Is ... Agreed that said party of the first part [Walter] and the party of the second part [Nellie] shall continue to hold as joint tenants the ranch owned by them as such joint tenants, located near Fulton, Sonoma County, California; that said joint tenancy real property is now leased to one Wilson, and that all rents received shall be deposited in First National Bank of San Rafael, at Novato, California, and out of said fund shall be paid all interest, principal and taxes dues [sic] in and about said property. That at the expiration of the Wilson lease (or before) each of said parties shall have the option to purchase the other’s one-half interest at an appraised valuation or that the said property shall be sold and the net proceeds divided equally between the said parties...”

Walter died on August 24, 1957, before the option provided for in the agreement was taken up and before any other disposition of the joint tenancy property had been made. The plaintiff and appellant, Dolores P. Wardlow, is one of Walter’s children by a prior marriage and is the duly appointed and acting administratrix of his estate. On October 18, 1957, she commenced the present action against the defendant-respondent to quiet title to said property. By her complaint she alleged (1) her capacity as administratrix, (2) that Walter and Nellie were joint tenants of the subject property, (3) that Walter and Nellie had entered into a property settlement agreement by which the joint tenancy had been terminated, and that each thereupon received an undivided one-half interest in the property. The defendant demurred to the complaint on the grounds among others that insufficient facts were stated upon which to predicate a cause of action; and that the complaint was uncertain inasmuch as the terms of the alleged