Britton v. Hammell

[691]

LANGDON, J.

This is a second appeal in the same cause. In the first, a judgment for defendant was reversed.

(Britton

v.

Bryson,

216 Cal. 362 [14 Pac. (2d) 502].) Upon a retrial of the case, judgment went for plaintiff, and defendant appealed.

John H. Britton procured a decree of divorce from Sophie Britton in Bent County, Colorado, March 30, 1891. He acquired property in 1916. In 1923 and 1924 he conveyed title to said property to Rose E. Britton, supposedly his wife. She later conveyed it to him as his separate property. Rose E. Britton died in 1926, and John H. Britton then made deeds of gift to defendant D. C. Hammell.

In 1926 Sophie Britton brought this action against John H. Britton and defendant Hammell to declare the deeds to Hammell void, and to compel the return of the property to the community. Answers were filed, but the divorce decree of 1891 was not pleaded. In 1927 John IT. Britton died, and his administrator, Prank Bryson, substituted as a party defendant, pleaded the 1891 decree as a bar. Thereafter, in 1928, Sophie Britton brought an action in Bent County, Colorado, and procured a judgment annulling the divorce decree of 1891, for fraud.

The lower court in the first trial of this cause held that the Colorado decree of 1891 was valid. In

Britton

v.

Bryson, supra,

this court reversed the judgment. Substantially the same evidence was presented at the new trial, and the lower court concluded that the plaintiff was still the wife of John IT. Britton at the time the deeds were made, that they were, in consequence, void for lack of her consent. Sophie Britton has since died, and her administrator has been substituted as plaintiff.

The merits of this appeal are concluded by our first decision already referred to, and only one point raised by appellant requires discussion. He contends that assuming the invalidity of the deeds of gift, nevertheless under our decision in