Schwarz v. Bohle

RICHARDS, J.

This action was instituted by the plaintiff to recover possession of the premises involved in it from the defendants, who were alleged to be tenants of the plaintiff and to have failed to pay their rent, and also failed and refused to surrender possession of the premises to the plain

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tiff as the owner thereof. The answer of the defendants denied their relation as tenants of the plaintiff and denied that the plaintiff was the owner of the premises. As a further answer to the plaintiff’s complaint the defendants alleged that one Julia Schwarz, deceased, the wife of the plaintiff, and the mother of the defendant E'va Anna Bohle, was in her lifetime the owner of the premises in question ; that she died intestate, and that after her death the plaintiff in this action represented to the said defendant Eva Anna Bohle that if she would disclaim to him all interest in the property he would clear the title, and would thereafter on demand grant said premises to said Eva Anna Bohle; and that relying on such representations she disclaimed all her right, title and interest in said property to said plaintiff, but that said plaintiff upon her demand has refused to convey said property to her; wherefore she prays that she be adjudged the owner of said property; and that the plaintiff be required to deed the same to her.

Upon the trial of the cause the plaintiff testified that the property in question was purchased by himself and his said wife, Julia Schwartz, as community property; that upon her death an administrator was appointed of her estáte; that the plaintiff thereupon commenced an action against said-administrator and also against the two children of himself and his deceased wife, of whom Eva Bohle was one, to quiet title to the premises, alleging the same to have been community property, and that he since his wife’s death was the sole and absolute owner thereof. The administrator filed a general denial in said action; the other two defendants filed disclaimers therein. Upon the trial of that action the plaintiff recovered judgment, decreeing him to be the sole owner of the property. The judgment-roll in that case was then introduced in evidence in this case, and the plaintiff rested. Thereupon the defendants undertook to offer evidence in support of the affirmative averments of their answer to the effect that the plaintiff had orally promised the defendant herein, Eva Anna Bohle, that if she would give him a disclaimer in the former suit he would convey the premises to her upon demand. The court refused to permit the defendants to make this proof upon the two grounds that if it was offered as an attack upon the former judgment it was . inadmissible since that judgment was