Schwab v. Schwab

DOOLING, J.

Defendant Arthur C. Schwab appeals from a judgment in favor of plaintiff setting aside, as to a one-half interest, an assignment of her deceased husband to appellant of a promissory note secured by deed of trust on an apartment building.

Respondent and the decedent John Schwab were married in 1936. At that time John requested her to convey to him as joint tenant a one-half interest in a home owned by her and in which they subsequently lived. This she did.

In 1944 respondent and her husband purchased an apartment building. Record title was taken in their names as joint tenants but it was their understanding that it was community

[22]

property and over one-half the purchase price came from respondent’s earnings.

On April 17, 1950, respondent by deed conveyed to her husband her interest in the apartment and he conveyed to her his interest in the home. Respondent testified that these transfers were prompted by marital difficulties, her husband having told her that he wanted to separate from her and move to Colorado. Thereafter John did leave her and go away for a short period. After a brief absence John returned and they resumed their marital relations. She testified that upon his return it was orally agreed between them that the ownership of the apartment should be as it had been before her conveyance but that the home should remain her separate property. Respondent did not ask her husband to retransfer by deed an interest in the apartment and the record title remained in him.

John sold the apartment in 1951 and received a promissory note secured by deed of trust for the unpaid portion of the purchase price. In May, 1951, John executed an assignment of the note and deed of trust to appellant, his son by a former marriage, upon the understanding that he would continue to receive the monthly payments so long as he lived. John died in August, 1955, and respondent did not learn of this assignment until about two months before his death. She asked the appellant to assign to her the note and deed of trust but he refused.

The complaint was in two counts. The first count alleged the separation and transfer from respondent of her interest in the apartment. It then pleaded the reconciliation and alleged that at that time the parties “mutually agreed that said real property thereupon became and would continue to be their community property.”