MacKay v. Darusmont

BARNARD, P. J.

This is an action to set aside a deed on the ground that it conveyed community real property and that the wife had not joined therein. From a judgment in favor of the defendants the plaintiff has appealed.

There is no dispute as to the material facts. The appellant was employed by Doctor T. A. MacKay in his dental office for some eighteen months prior to February 20, 1937. On that date they went through a marriage ceremony in Yuma, Arizona. MacKay’s former wife had obtained an interlocutory decree of divorce in the Superior Court of Los Angeles County on February 19, 1936. A final decree in that action was not entered until February 23, 1937. On April 20, 1939, after an answer had been filed in this action

[23]

raising the question as to whether this appellant was legally married to MacKay, another final decree was entered in the divorce action

nunc pro tunc

as of February 20, 1937.

On April 24, 1937, an escrow was opened with a bank by MacKay as buyer and one Nelson as seller, through which MacKay purchased the property here in question. MacKay’s instructions provided that the money he placed in escrow was to be used provided a policy of title insurance was procured showing title vested in him, a married man, as his separate property. The appellant placed in this escrow a quitclaim deed to this property which she had signed under date of April 24, 1937, and acknowledged May 1, 1937, which quit-claimed the property to “Tim Adolph MacKay, a married man, as his separate property. ’ ’ She also handed the escrow bank a letter dated April 24, 1937, in which she stated: “I herewith hand you a quitclaim deed executed by Gwendolen MacKay to Tim Adolph MacKay, a married man, as his separate property describing (here follows description of property) which you are authorized to use upon the order of Tim Adolph MacKay without collection for my account, as I have received full consideration therefor outside of escrow. ’ ’ In closing this escrow this quitclaim deed and a deed from the Nelsons conveying the property to ‘ ‘ Tim Adolph MacKay as his separate property” were recorded on May 13, 1937. It appears, without conflict, that the full consideration for this lot, $5787.50, was paid in cash out of funds belonging to MacKay as his separate property.