Kiplinger v. Kiplinger

WOOD (Parker), J.

Action to quiet title to real property or, in the alternative, for partition. Judgment was that plaintiff owns the property as her separate property. Defendant appeals from the judgment.

Appellant contends that the evidence does not support the findings.

Plaintiff and defendant were married in September, 1949. In January, 1950, they acquired record title to real property (house and lot) in Encino by a deed which recited that the property was conveyed to them “as joint tenants.” In acquiring the property, a down payment of $351.96 was made, and plaintiff and defendant executed a note and a trust deed for a

G.

I. loan in the amount of $9,500. The unpaid balance of the loan at the time of trial was $8,337.49. Plaintiff obtained an interlocutory divorce on April 22, 1953. In the divorce action plaintiff alleged that the property was community property. No disposition of the property was made in the divorce action. The present action was filed April 12, 1954.

The allegations in the cause of action to quiet title were, in part, that: Title to the property was inadvertently placed in the names of the parties as joint tenants. It was the intent of the parties that the property be the property of

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plaintiff inasmuch as plaintiff furnished the entire consideration therefor and had made all the payments on the encumbrance which was placed upon the property at the time of the purchase. Defendant claims an interest in the property. Plaintiff does not believe that defendant has any interest in the property.

In his answer, defendant denied those allegations and he requested a partition of the property.

Plaintiff testified that: She was living on the property at the time of trial and had lived there continuously since February, 1950. Defendant also lived there from February, 1950, until the early part of 1952, with the exception of an eight-month period commencing in August, 1950. He had not lived there since the early part of 1952. When defendant left in August, 1950, and when he moved out in 1952, he stated that he did not want any part of the house, that all “he wanted was his name taken off his G. I. loan so he could re-use it.” She (plaintiff) made the down payment of $351.96, and all the payments which were payable on the loan since the purchase. Defendant did not turn any money over to her, and the funds of the parties were not commingled in a bank account. She had maintained the property since early in 1952, and the improvements she made thereon included painting, gardening, and installing a fence. Her two children by a previous marriage lived with her. She was employed as a waitress during the time she was married to defendant. She obtained a final decree of divorce from defendant.