Harris v. Hensley

MURPHEY, J.,

pro

tem.

The plaintiff and respondent and defendant and appellant were formerly husband and wife and were such at the inception of the transaction resulting in the pending litigation. They were married in Oklahoma in 1902, where they resided until 1906, when they came to California, where they resided until 1917, when they were divorced. The plaintiff was an American Indian, and as such succeeded with her children by defendant to certain land allotments in the state of Oklahoma. The property so allottee to plaintiff was manifestly her separate property. Early in the year 1911 the defendant and appellant disposed of his business interests in the city of Bakersfield and made a trip to Oklahoma, and while there, with the consent of the plaintiff, disposed of the land hereinbefore mentioned belonging to her, for -which he received $2,100 in cash, and a lot and house at Tulsa, which he subsequently, and after the parties were divorced, sold for the sum of $500. In addition to these sums he received several hundred dollars, the exact amount of which is uncertain, through the sale of some portions of the land allotted to their children. The marital relationship of the parties after the return of the defendant to California in the fall of 1911 was to say the least quite tempestuous. They lived together at times and lived separately at other times from that date up to the date of the divorce, which was granted some time in the year 1917. The circumstances and conditions under which they lived prior to 1911 is not disclosed by the record. The evidence clearly discloses that the plaintiff was completely dominated by the defendant. On the return of the defendant from his trip to Oklahoma, the family made a trip to the northwest and on the return trip remained in Tacoma for a considerable period of time, where a lodging-house business was purchased and conducted by them, whether profitably or unprofitably may not be accurately ascertained from the record. This business was sold and

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the parties returned to Bakersfield, California, their original place of residence in this state, where the defendant purchased a meat market business, taking in with him as his partner a brother. The bone of contention in this litigation centers around the capital invested in this enterprise, its source and the circumstances and conditions surrounding the investment. It may be stated in passing that none of the money received by defendant for the sale of the plaintiff’s property in Oklahoma was ever delivered directly to her; however, it is the contention of the defendant that this money was largely if not totally consumed in expenses in Oklahoma and to pay the expenses of the trip of the family to the northwest and their return. There is no doubt, and the record we think fully establishes the fact, that at the time of the purchase of this meat market business in Bakersfield the defendant had no funds or other property belonging to him, and there is evidence in the record from which it may reasonably be concluded that the partner brother of the defendant was also broke. A cash payment of $1,500 was made on the purchase price of the business and installment notes were given by the brothers for $3,000 additional, payable at stated times in the amounts of $500 at each payment.