Immel v. Dowd

MARKS, J.

This action was brought by appellant seeking to recover title to a one-half interest in property in the city of Oxnard upon the ground that it was the community property of herself and Thomas J. Immel, she not having, joined in the deed made by Thomas Immel conveying it to respondent.

The facts as found by the trial court are not in dispute. Appellant and Thomas Immel were married on March 8, 1872. About the year 1881 Thomas deserted appellant and they did not live together after that date. On February 8, 1885, Thomas married Mary E. Jameson. This marriage was ceremonial. Respondent was their daughter. On September 19, 1886, appellant married Amos Duckett and lived with him as his wife until his death. Thomas Immel deserted his second wife in 1893 and moved to California. That marriage was dissolved by divorce in 1908. The property in controversy was acquired by Thomas Immel in 1905 and 1906. On November 28, 1908, he conveyed it to respondent by deed of gift, reserving a life estate in it to himself. He died on March 7, 1932.

The trial court found that the marriage between Thomas Immel and appellant had been dissolved by divorce at some time between the years 1881 and 1885. This finding is attacked as not being supported by the evidence.

The sole evidence in support of the questioned finding is disputable presumptions, set forth in section 1963 of the Code of Civil Procedure. It is not questioned that these presumptions are a form of evidence and if not overcome may be invoked to support the findings and judgment.

The evidence offered by appellant to rebut these presumptions may be summarized as follows: That Thomas Immel wrote her inclosing a copy of a decree of divorce from her which she thought had been rendered by a court sitting

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in Ottawa, Kansas; that he had written and told appellant, and had told others, that he had not obtained a divorce from her; that she had never been served with any process in a divorce action brought by him; that she had not obtained a divorce from him; that after the death of Amos Duckett, a veteran, she had applied for a pension as his widow and that her application was disallowed because no evidence was found of a divorce from Thomas Immel; that the court records had been searched at Ottawa, Kansas, at Los Angeles and Ventura, California, and no record of her having been divorced by Thomas Immel was found.