Spanfelner v. Meyer

DOOLING, J. pro tem.

Respondent had judgment quieting his title to a parcel of land of less than one acre, which was part of a larger tract .conveyed to respondent’s brother by deed of appellant and his wife in 1928. In this transaction it is admitted that respondent’s brother was acting as agent and naked trustee for respondent and the property was subsequently conveyed to respondent by his brother. Appellant cross-complained, alleging that the parcel of land here in dis

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pute was included in the description in the deed by mutual mistake of the parties and praying for a reformation of the deed in that particular.

Appellant in his opening brief made the claim that there was no evidence of title in respondent. Respondent in his brief points to a stipulation in the transcript of the deed to respondent’s brother in 1928 signed by appellant and his wife, and of a deed from the brother to respondent in 1933, both describing the property in suit. In view of this stipulation there is nothing in this claim of appellant.

Appellant further urges that his wife was a necessary party defendant. This point was not made in the trial court, but it is appellant’s position here that she was a necessary party because she was one of the grantors in the deed to respondent’s brother and it is claimed that it must be presumed that she had a community property interest in the land conveyed. It does not affirmatively appear in the record that this land was community property, but assuming it to have been it does affirmatively appear that appellant acquired his title before July 29, 1927, the effective date of section 161a of the Civil Code. Whatever may be the law since the adoption of that code section it is settled that a wife has no vested interest in community property acquired before that date (3 Cal. Jur. 10-Yr. Supp., p. 592;

McKay

v.

Lauriston,

204 Cal. 557 [269 Pac. 519]) and that “as to community property acquired previous to 1927 her joinder in a deed thereof is in legal effect but an expression of her assent to the transfer by the husband. ’ ’

(Riley

v.