Karr v. Powell

GRIFFIN, Acting P. J.

Plaintiff and defendant formerly were husband and wife. After her divorce and remarriage, plaintiff filed an action against her former husband to quiet title to a dwelling which was acquired by them as joint tenants on July 9, 1931, and homesteaded on June 22, 1933, while they were husband and wife. After their divorce the home was occupied by plaintiff and the children. The defendant filed an answer denying the allegations of the complaint and also filed a cross-complaint asking that the property be partitioned.

The affidavit attached to the declaration of homestead states that plaintiff is the owner and joint tenant with defendant of the property described and declared to be of the value of $2,000. Plaintiff’s answer to the cross-complaint alleges that on June 29, 1933, they executed a property settlement agreement, but expressly excluded the homestead from it; that on August 17, 1933, the parties separated; that on August 27, 1934, a final decree of divorce was entered between them (no disposition was made of the property by the divorce decree); that on September 15, 1935, the defendant deeded a one-half interest in the property to his brother, Delbert J. Powell; and that the half interest transferred to Delbert immediately was retransferred to the defendant, but the defendant did not record the later deed until March, 1943, after plaintiff had started a quiet title action against the administrator of the estate of the deceased brother, Delbert J. Powell.

It is defendant’s contention that the deeds between himself and brother were executed for the purpose of terminating the joint tenancy; that the brother was in no sense his agent and had no rights in the property except momentarily; that plaintiff retained occupation of the property under a verbal

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agreement that she should pay the taxes and upkeep of the property until the children became of age. It is plaintiff’s contention that the brother Delbert came to her after the property was deeded to him and claimed ownership; that she repudiated his ownership and told him that she was the sole owner; that he had better go to his brother and get his money back; that the home was hers; that she continued this attitude for more than five years; that she continued in open, notorious and exclusive occupancy of the property, paid all taxes, insured the property in her own name, and at all times claimed sole ownership; that she made improvements of approximately one-third of the valuation of the property; that she had no knowledge that anyone other than Delbert claimed any ownership; and that as to him she never withdrew her repudiation.