Wells v. Wells

MARKS, J.

This is an appeal from a judgment in the sum of $1,015.50 in an action for an accounting.

Plaintiff and defendant had been husband and wife but were divorced. They owned 286 acres of land near McKittrick in Kern County. In making a property settlement they conveyed the property to their children subject to the reservation of a life estate in themselves as joint tenants. Concurrently with the deed and by way of property settlement they executed a contract containing the following:

‘ ‘ Therefore, in consideration of the premises, it is agreed that the party of the first part (defendant) shall retain the right to manage and control the said property reserved in said deed of gift during his life time; that the income derived from said premises and the use thereof during the life time of the party of the first part and party of the second part (plaintiff) shall be divided equally between the parties hereto; ...”

It was alleged in the complaint that defendant had occupied and used the land and had produced and received money therefrom, the exact amount of which was unknown to plaintiff, and had sold water from the wells. An accounting was asked which was to include the reasonable rental value of the premises and the selling price of the water.

The complaint expressly waived recovery for any income or rental value of the property received prior to the “proper period of the statute of limitations applicable to such agreements” which was assumed by the trial judge and counsel to be four years. The complaint was filed on July 11, 1940.

The trial court found that defendant had paid plaintiff no money as the reasonable rental value of the property since November 10, 1936; that this “reasonable rental value of all said premises from the 10th day of November, 1936, to the 10th day of November, 1942, is Two Hundred Dollars ($200.00) per year,” and further found that plaintiff was entitled to judgment for half this reasonable rental value, or $600. Defendant had also sold water of the value of $600, of which amount plaintiff was given judgment for $300. The

[115]

balance of the judgment is made up of accrued interest in the sum of $115.50.