Palen v. Palen

PULLEN, P. J.

Plaintiffs herein are husband and wife. Defendant is the divorced wife of Matthew A. Palen, one of the plaintiffs. Defendant held unsatisfied separate judgments against the plaintiffs. She attempted to' levy execution upon these several judgments upon certain real property standing in the name of Mary Agnes Palen, whereupon Mary Agnes Palen brought this action to quiet title to the property, claiming it to be her sole and separate property.

The trial court found the property in question was the separate property of plaintiff Mary Agnes Palen and that she had filed a homestead upon the property prior to the filing of any judgment lien thereon. As to the asserted lien against plaintiff Matthew A. Palen, the court held that it did not affect the property for two reasons, first, because Palen had no interest in the property to which the lien could attach, and secondly because defendant had failed to have the property appraised after execution in conformity with the provisions of section 1245 of the Civil Code.

Upon this appeal defendant claims that the property was not the separate property of plaintiff Mary Agnes Palen, and that if she had ever had a homestead on the property she abandoned the same. As to these points the record discloses, and the court found, that in April, 1933, Mary Agnes Palen purchased this property for $7,500, paying $750 in cash from her own funds and giving a note signed by herself and her husband, Matthew A. Palen, for the balance, which was secured by a deed of trust on the property, payable at the rate of $75 a month. These subsequent instalments, as well as

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the payment of taxes and interest, were paid by Palen from his salary as hn officer in the United States army.

In December, 1933, plaintiffs, for their own convenience, so the court found, conveyed the legal title to the property, in constructive trust, to Brook Edmonston for the use and benefit of Mary Agnes Palen and without intent to convey to Edmonston any beneficial interest therein and without intent to abandon the homestead previously declared thereon. In May, 1934, Edmonston, without consideration, reconveyed the legal title back to Mary Agnes Palen.

As to the claim made by appellant that the property here in question was not the separate property of Mary Agnes Palen, section 164 of the Civil Code provides that whenever any real or personal property is acquired by a married woman by an instrument in writing the presumption is that the same is her separate property. We therefore start with the presumption in this case that this property is the separate property of Mary Agnes Palen. In