Lisenbee v. Lisenbee

BTJRNETT, J.

The action was 'brought to quiet title to forty-three acres of land in San Joaquin County. Defendant, Maud Lisenbee, who was married to Charles S. Lisenbee in 1912 and was his second wife, was the only serious contestant of plaintiff’s claim. Her opposition is based primarily upon the contention that the land was community property, and that the conveyance to plaintiff was made to defraud her of her community rights. Twenty acres of the land in controversy were conveyed to Charles Rothwell Lisenbee, a son of Charles S. Lisenbee by a former wife, by a deed from A. S. Gunn and wife, on August 23, 1913. The remaining twenty-three acres were conveyed by the said Charles S. Lisenbee and Maud Irene Lisenbee to said son on April 17, 1915, and he conveyed both parcels to plaintiff for a valuable consideration on the thirtieth day of January, 1917. On May 22, 1915, the said Maud Lisenbee brought an action against her husband for divorce on the ground of cruelty. She was denied a decree for the reason that her testimony was not sufficiently corroborated, but on May 19, 1916, she was awarded a certain amount for maintenance, and on November 12, 1917, an execution was issued thereon. This was levied upon the property and by virtue thereof it was sold to one Floyd Klinger to satisfy said judgment.

'Among the court’s findings were the following: “That the title of the twenty-acre tract described in the complaint herein never at any time vested in Charles Samuel Lisenbee or Maud I. Lisenbee, his wife, and that the purchase price therefor was paid by Rothwell Lisenbee, and the conveyance of said realty was made to him for that reason,” and “that the twenty-three acre tract described in the complaint herein was purchased by Charles Samuel Lisenbee with the proceeds derived from the sale of 320 acres of land in Calaveras County that had been his separate and individual property that he owned for more than twenty years prior to his marriage with the defendant Maud Irene Lisenbee, and- that for that reason he -could convey the title thereto without his said wife, Maud, joining in the conveyance thereof, and that if any fraud or threats were made or practiced, as alleged in

[774]

the defendant Hand I.' Lisenbee’s cross-complaint, the evidence thereof was wholly immaterial, and such allegations require no findings thereon, as they could not affect the plaintiff’s title to the realty in controversy.”