Bradley v. Scully

SHOEMAKER, P. J.

Plaintiff James Bradley brought this action to obtain a decree quieting his title to a parcel of San Francisco real property and canceling a deed in favor of defendants John Scully and Ruth Cottle. Plaintiff prosecutes this appeal from a judgment decreeing that defendants Scully and Cottle -are the owners of an undivided one-half interest in the property in question and are tenants in common with plaintiff.

The facts are undisputed.

On August 29, 1927, plaintiff James Bradley entered into a contract to purchase a parcel of real property located on Westgate Drive in San Francisco -and made a $500 down-payment. He took title to the property in his name onfy by a deed dated January 5,1928.

Plaintiff married Winifred Scully on January 28, 1928, and he and his wife thereafter made the mortgage payments on the property out of community funds consisting of their earnings. On December 28, 1963, plaintiff and his wife executed a deed conveying the property to plaintiff’s sister, Irene Ilaubold. By deed executed on the same day, Irene Haubold conveyed the property to plaintiff and his wife, as joint tenants.

On August 23, 1937, plaintiff and his wife jointly executed a declaration of homestead upon the property, the same being

[99]

duly recorded that day. The homestead was never thereafter abandoned.

On September 24, 1964, plaintiff’s wife executed a grant deed purporting to convey her undivided one-half interest in the homesteaded property to her brother and sister, defendants John Scully and Ruth Cottle. On the same day, she also executed a will devising any real property interest she had to the same two defendants in equal shares.

Plaintiff did not learn of the deed or will until after his wife died on November 12,1964.

The trial court made factual findings in accord with the above evidence and also found that each undivided one-half interest in the joint tenancy was the separate property of plaintiff and his wife and that they never made any agreement, express or implied, that the real property should be community property; that the recording of the declaration of homestead by plaintiff and his wife did not increase plaintiff’s interest in the property either during the lifetime, at the time of death or after the death of his wife; that plaintiff’s wife had the right and could and did convey by deed her separate property consisting of the one-half undivided interest in the property to defendants Scully and Cottle; that the joint tenancy formerly existing between plaintiff and his wife was destroyed by the conveyance to defendants and that plaintiff thereafter possessed no right of survivorship but held an undivided one-lialf interest in the property as a tenant in common with defendants, who owned the other undivided one-half interest in the property; that plaintiff’s wife could and did devise any interest she held in real property, whether community or separate, by the will in favor of defendants.