Sellman v. Sellman

KINCAID, J. pro tem.

Plaintiff appeals from a judgment denying him relief in this action wherein he seeks to quiet title to and recover possession of certain improved real property.

The evidence discloses that plaintiff and defendant were formerly husband and wife and there is one minor child the issue of such marriage. While living together, the parties purchased with community funds the lot and dwelling which is the subject matter of this action for $10,500, taking title thereto in both their names as joint tenants. At the time of the filing of the subsequent divorce proceedings the full purchase price of such property had been paid, excepting $4,500; the rental value of the property was $50 per month. On or about June 21, 1932, before the separation of the parties, and plaintiff having failed to furnish money for the support of his wife and child, defendant borrowed the sum of $150, giving a promissory note as evidence of the indebtedness. Defendant thereupon told plaintiff that she had borrowed this money and that he would have to pay off the loan to the lender. Plaintiff told defendant, “Don't you worry about that. I will take care of that. That is my problem. ’ ’

[194]

Several months after the execution of the promissory note by defendant, plaintiff brought an action for divorce against her. She thereupon. filed her answer and cross-complaint thereto and was granted an interlocutory judgment of divorce against plaintiff. Defendant was awarded the custody of the minor child, the possession of and right to live in the community real property and plaintiff was ordered to pay defendant $85 per month for the support of herself and child, keep up reasonable repairs on the house, and payments on the encumbrances, assessments and taxes thereon, title to the property to remain in joint tenancy.

Suit was subsequently brought against defendant on the above-described promissory note and on September 30, 1933, a judgment was rendered against her for $179.67. A writ of execution issued and the judgment creditor undertook to purchase, at sheriff’s sale her interest in the real property in satisfaction of the judgment in the sum of $214.67. On August 26, 1937, the judgment creditor assigned the certificate of purchase of defendant’s interest in such property to plaintiff herein. Some eight years later he filed this suit against defendant to quiet title to all her right, title and interest in said property and for possession.