Stewart v. Stewart

MARKS, J.

Appellant commenced this action to quiet her title to an interest in real property situated in the county of Los Angeles, state of California. Respondent denied any title or interest in the property in appellant and alleged title in himself. He filed a cross-complaint in which he sought to quiet title to the property in himself. The

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court found against appellant and in favor of respondent and entered judgment quieting title to the property in respondent. From this judgment appellant has prosecuted this appeal.

It appears from the pleadings and evidence that the parties hereto were married at Lexington, Missouri, on April 16, 1891, and were divorced at Kansas City, Missouri, October 16,1906. They were remarried at Los Angeles, California, on August 8, 1908. After two unsuccessful attempts to secure another divorce, an interlocutory decree of divorce was entered in favor of Edward T. Stewart against Anna L. Stewart on July 22, 1919, in Los Angeles County. A final decree of divorce was entered on the twenty-sixth day of July, 1920. Neither decree mentioned nor attempted to divide any community property.

On January 21, 1909, respondent acquired by purchase the real property which is the subject of this action. Appellant maintains that the property having been acquired by purchase during coverture became community property and that upon the dissolution of the marriage relation she and respondent became the owners of this property as tenants in common, each being vested with a one-half interest therein. It is her contention that the finding of the trial court that the real property when acquired by respondent was not community property but was his sole and separate property, is not supported by the evidence and is contrary to the evidence. It is her contention that the presumption created in her favor by section 164 of the Civil Code wp.s not overcome by clear and satisfactory evidence and that therefore the judgment of the trial court must be reversed.

The character and sufficiency of the evidence to overcome such presumptions as are raised by this section were discussed in the case of

Simonton

v.