Tripp v. Superior Court

WORKS, J.

Petitioner's wife sued him for divorce and procured an interlocutory decree against him. Among other things the decree contained the following: “The court further finds that prior to the commencement of this action . . . the parties hereto executed a certain property settlement and agreement, which should be and is hereby incorporated in and made part of this decree, and is in words and figures as follows, to-wit”: The agreement was then set out in full. In part, it described several parcels of real property, all of which was stated to be the community property of the spouses, and by it the husband agreed to convey to the wife all his interest in the property. The instrument also contained the following: “It is further agreed and understood by and between the parties hereto that there is a total indebtedness against the Orange County property described above of approximately nine hundred ($900.00) dollars, and said [husband] agrees with said [wife] to make said payments as the same may become due to and for the use and benefit of the said

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[wife]. . . . That said [husband] has herewith made conveyances of all his said property as set forth above, the same to be held subject to the approval of this property settlement by the court, and to be delivered when said agreement is so approved by the court and embodied in the decree of said action.” As partially explaining this reference to “the court” and as showing more specifically what kind of decree was in the minds of the parties, it is to be observed that recitals in the preamble to the agreement were that “said [wife] has filed suit against [the husband] for divorce” and “said [husband] has had competent advice and been advised that his said wife has a good and meritorious cause of action, and he having no meritorious defense thereto, it is mutually agreed and understood,” etc. After setting forth the property agreement the interlocutory decree ordered “that said plaintiff shall take all of the community property as set forth in said property settlement and agreement as aforesaid.” In due time the court made its final decree of divorce between the parties. In that decree, also, the property agreement was set forth in full, being preceded by the statement: “The court further says that prior to the commencement of this action . . . the parties hereto executed a said

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