Doxsee Co. v. All Persons

PRESTON, J.

Appeal by defendant Jennie Fagalde from judgment for plaintiff in an action to establish title to some 53 separate parcels of real property located in that portion of San Mateo County which was at one time a part of San Francisco County, of which area the land title records were destroyed by the fire of 1906. It was herein stipulated that plaintiff had taken all necessary proceedings under the McEnerney Act to give the court jurisdiction to

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hear and determine the cause. Only as to four of said 53 parcels of property is plaintiff’s title here questioned. These four parcels were deeded to plaintiff on December 16, 1931, by Frederick A. Fagalde, as his separate property. By amended answer and amended cross-complaint appellant Jennie Fagalde asserted her ownership in fee of an undivided one-half interest therein.

To make understandable the claims of appellant, it is necessary to set forth a statement of her relations with plaintiff’s said grantor, Frederick A. Fagalde, as found by the court and established by sufficient evidence.

Frederick A. Fagalde and appellant were married on June 25, 1904, and thereafter acquired, as community property, a 160-acre tract of land in Tehama County valued at $7,000; also some hogs. In September, 1911, they performed a mutual agreement which the court here found was a settlement between them of their property rights, whereby the husband deeded to appellant’s brother, for her, the said tract of land, and transferred the hogs to a groceryman, to whom they were indebted, in full payment of his claim; and they further agreed that any property thereafter acquired by either of them would be that one’s sole and separate property. At said time also they separated; the husband moved to San Francisco, and they have not since seen or spoken to each other.

In May, 1913, the husband filed an action for divorce against appellant in the San Francisco Superior Court alleging, among other, things, that there was no community property. Appellant answered and cross-complained in said action, denying that there was no community property and affirmatively alleging that the husband was possessed of community property but that she was unaware of the location thereof. By interlocutory decree, entered January 30, 1914, a divorce was granted to appellant and it was further adjudged that the husband pay her $50 counsel fees and $11 costs “in addition to any settlement of property rights that may have been made between the parties hereto”. On June 22, 1915, on motion of the husband, a final decree of divorce was entered. Unfortunately in said final decree the word “plaintiff” was erroneously inserted for the word “defendant” and thus the decree apparently failed to conform to the terms of the interlocutory decree and purported to