Nelson v. Sweitzer

DOOLING, J.,

pro tem.

This is an appeal by plaintiffs from a judgment for defendants in an action to quiet title.

Plaintiffs and appellants are blood relatives of Emma Sweitzer, and as such entitled to inherit her separate property. Respondents are the sons of Sam Sweitzer, husband of Emma Sweitzer by a former marriage, and Jesse Sweitzer, one of the sons, as administrator of the estates of Sam Sweitzer and Emma Sweitzer.

It appears from the record that Sam Sweitzer and Emma Sweitzer were married in 1898. Sam Sweitzer had four sons by a previous marriage, Jesse, Delbert, Harry and Ralph, who are defendants and respondents herein. There were no children born of the marriage of Sam and Emma Sweitzer, and Emma Sweitzer died without issue. Sam Sweitzer died

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in 1916, leaving Emma and his sons surviving him. He left community property of himself and his wife Emma consisting of real and personal property. Shortly before his death Sam Sweitzer executed two deeds and a bill of sale purporting to convey all of this property to his wife Emma. After his death in 1916 Emma recorded the deeds and bill of sale and continued in possession and management of all of the properties, applying- the income to pay off existing mortgages and for her living expenses and keeping the balance until the time of her death in 1930. The relations between Emma Sweitzer and her stepsons were at all times cordial and friendly, they calling her “Ma” or “Ha Sweitzer.” One son, Jesse, lived in the same locality and saw her frequently on the most intimate terms. Another son, Ealph, spent most of his time in the United States army, but between enlistments lived on the home ranch with his stepmother and always considered it his home. None of the sons of Sam Sweitzer ever objected to their stepmother’s occupancy and management of the property or to her keeping all of the income therefrom. It is in evidence that Emma Sweitzer "made statements to several persons that all of the. property was her own, but the only evidence that any of the sons ever heard of this claim came from one witness, who stated that she told Jesse Sweitzer of Emma Sweitzer’s claim to exclusive ownership of the property. This Jesse Sweitzer denied. Shortly after Sam Sweitzer’s death Emma Sweitzer recorded the deeds and bill of sale, but there was no proof of actual knowledge of their existence or recordation by any of the sons, and we are entitled to assume in support of the judgment that the sons of Sam Sweitzer had no actual notice of the deeds and bill of sale nor of Emma Sweitzer’s claim to exclusive ownership under them. The estate of Sam Sweitzer was not probated until after Emma Sweitzer’s death.