Irwin v. Zuver

BARNARD, P. J.

This quiet title action involved the issue as to whether certain real property was owned by the plaintiffs as community property, or as joint tenants..

On May 5,1931, the plaintiffs purchased the property under a written agreement signed by both, which provided that they were to receive the property as joint tenants with the right of survivorship. As a part of the down payment Mrs. Irwin conveyed another parcel of real property which stood in her name and which had previously been conveyed to her by Mr. Irwin, at a time when he was being pressed by his creditors. The remainder of the down payment was made with

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Mr. Irwin’s earnings since marriage, and some bonus money he received from World War I. In 1932, the property was deeded to the plaintiffs as joint tenants with the right of survivorship, subject to certain trust deeds. Subsequent payments were made from a joint bank account maintained by the parties, in which were placed rentals from the property and Mr. Irwin’s earnings.

In a proceeding before the Industrial Accident Commission the defendant, in 1947, obtained an award against Mrs. Irwin. A judgment based on that award was later entered in the superior court and upon execution the interest of Mrs. Irwin in this property was sold to the defendant.

In this action which followed the plaintiffs alleged, among other things, that they acquired this property by a deed dated December 9, 1932, which was made to them as joint tenants; and “that said property was, now is and at all times since December 9, 1932, has been the community property of the plaintiffs.” The court found that the statement just quoted was not true; that the plaintiffs acquired the property under a written contract whereby they agreed to purchase and hold it as joint tenants, with the right of survivorship; that certain other real property standing in the name of Mrs. Irwin, and also bonus money received by Mr. Irwin from World War I, had been applied on the purchase price; that subsequent payments had been made from a joint bank account maintained by these parties; and that since their first written agreement to purchase this property as joint tenants there has never been any agreement of any ldnd between them with respect to changing it from joint tenancy to any other form of property. As conclusions of law, it was found that this property is not the community property of the plaintiffs; that prior to the time of the execution sale to the defendants the plaintiffs held the property as joint tenants with the right of survivorship; that the defendant is entitled to enforce her rights as purchaser at the execution sale; and that judgment should be entered in her favor. Judgment was entered accordingly, and the plaintiffs have appealed.