Perry v. Manning

DRAPEAU, J.

The complaint herein alleges that plaintiff and defendant Perry are husband and wife having been married on May 25, 1942. That during such marriage, defendant husband with the use of community earnings and without the consent of plaintiff, agreed to purchase jointly with defendant Manning two unimproved lots by means of a written installment contract. That on or about February 9, 1950, defendant Perry assigned all of his interest under said contract to defendant Manning, whereupon defendant

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Reeves, the seller, executed a grant deed of the lots to defendant Manning, alone.

Defendant Manning answered admitting the purchase of the lots, performance by her of the terms of the contract; the execution of the deed to her alone, and alleged that “afterward” defendant Perry transferred his interest in the property to her.

Evidence was presented that $350 was paid down on the contract by defendant Manning and that the balance of $1,100 was payable in monthly installments of $25, some of which were paid by defendant Perry.

The contract of purchase was not produced at the trial, but an undated modification of the contract signed by defendants Perry and Manning was introduced which provided that the deed from seller should be made to defendant Manning alone.

By an amendment to her answer to conform to proof, defendant Manning alleged that the entire transaction was undertaken to provide for the care, maintenance, education and support of the paralyzed minor son of herself and defendant Simon Perry; that said child, a victim- of poliomyelitis, was born before the marriage of plaintiff and defendant Simon Perry; that said Perry signed the contract and paid money on the purchase price of the property in consideration of the mother’s promise to build a house on the lots where she could care for and maintain the child and thus relieve the father from providing a home, care, maintenance and support for said child. It was also alleged that the mother had complied with her promises and all that was done by the father was done in furtherance of his promise to help toward the support, education, care and maintenance of said minor child.

The trial court found, among other things, that the defendant Perry paid $200 on the purchase price of the lots from his earnings which were the community property of him and plaintiff; that the defendant Manning paid the entire balance of said purchase price; that defendant Perry conveyed his interest to her and she now owns said lots free and clear of any claim of defendant Perry, who received full and valuable consideration for the transfer.