Gerontopoulos v. Gerontopoulos

SPENCE, J.

Plaintiff brought this action seeking a decree of partition as to certain premises consisting of a city lot with a nine-room dwelling house erected thereon. An inter

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locutory decree of partition was entered adjudging that plaintiff was the owner of an undivided one-half interest in said premises and ordering the sale thereof. Defendants appeal from said interlocutory decree.

In 1915 plaintiff and his brother, Gust Gerontopoulos, owned the premises as tenants in common. The brothers were natives of Greece and had established themselves as partners conducting a grocery business in San Francisco. After the purchase of said premises, Gust Gerontopoulos married defendant Stamatia Gerontopoulos in 1916. The remaining defendants are the minor children of said parties. Defendant Stamatia filed a divorce action against Gust in 1932. She obtained a decree in said action awarding to her all of the interest of Gust in said premises subject to certain restrictions upon her right to alienate or encumber her interest during the minority of the children. It was for this reason alone that the children were named as defendants in this action and we may, for the purpose of this discussion, treat Stamatia as the sole defendant and refer to her as such.

It is conceded that the title to the • premises was originally vested in plaintiff and his brother Gust and it is further conceded that all of Gust’s interest in the premises became vested in defendant by virtue of the divorce decree. It was defendant’s claim, however, that plaintiff had orally agreed to sell his interest to Gust, that said oral agreement had been fully performed and that Gust had become the sole owner of the premises long prior to the entry of the decree in the divorce action. The trial court found against this claim of defendant and concluded that plaintiff was the owner of an undivided one-half interest in the premises and entitled to partition thereof. Defendant’s main contention on this appeal is that the trial court erred in making said findings and conclusions, but we find no merit in this contention.

The evidence in support of defendant’s claim was unsatisfactory in many respects and said evidence was contradicted in all of its material phases. If it be conceded that there was evidence to support defendant’s claim it must also be conceded that there was ample evidence to support the claim of plaintiff. There was evidence to show that after the marriage of defendant in 1916, the parties all lived together in said dwelling house during most of the time up until