Johnson v. Johnson

SHAW, J.

In this action plaintiff, without asking for a divorce, sought a decree awarding her permanent support and maintenance, as provided in section 137 of the Civil Code. Upon the theory that they had, by means of a fraudulent conspiracy with her husband, acquired certain real estate alleged to be community property of the couple and thus deprived her of her interest therein, she joined as defendants with him his father and mother, Frank and Beda Johnson, and his brother, Bayard Johnson. Plaintiff obtained a judgment, from which all of the defendants appeal upon a record presented in accordance with sections 953, 953a, and 953b of the Code of Civil Procedure.

By the decree it was adjudged that plaintiff Sarah Johnson do have and recover of and from defendants Beda Johnson, Frank Johnson, and Bayard Johnson, the sum of $1,787.50, together with attorney’s fees of $150, which sum of $1,787.50 the court adjudged to be one-half of the proceeds of the community property so conveyed by Neis Johnson. It was further adjudged that Neis Johnson pay to plaintiff the sum of $20 per month as an allowance for the support and maintenance of Frances Johnson, the minor child of plaintiff and her husband. As stated, the theory of the complaint as to the defendants other than the husband was that they had by means of fraud acquired community property of plaintiff and her husband. Waiving any question as’ to the sufficiency of the allegations of fraud, as to which, however, we entertain grave doubt, there is no finding of fraud on the part of any of the defendants; nor is there any evidence whatsoever tending in the slightest degree to justify a finding that would war

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rant a judgment such as that here rendered against defendants Frank, Beda and Bayard Johnson. For aught that appears in the findings to the contrary, they paid full value in consideration of the conveyance of the property so made by Neis Johnson to them, and the evidence without substantial contradiction shows the payment of such consideration. Briefly stated, the evidence shows that after his marriage, Neis Johnson obtained a contract for the purchase of a lot at the price of one thousand eight hundred dollars. In making the first payment he borrowed five hundred dollars from his father, which sum he paid thereon at the execution of the contract. Of the deferred payments $750 was paid out of his earnings after marriage. Being unable to keep up the payments, and being largely indebted to his father, he, in payment of such indebtedness and $150 cash at the time paid to him by his father, conveyed the property to his mother, who paid the balance of $550 due upon the contract for the purchase thereof and took a deed to the property, which she afterward conveyed to her son, Bayard Johnson, for two thousand five hundred dollars, and he, under an arrangement with his father, conveyed it in exchange for an equity in other property which was subject to a mortgage of seven thousand five hundred dollars. The court found this equity to be of the value of $4,125, which, after deducting the $550 paid by Beda Johnson, left $3,575, all of which the court declared to be community property of plaintiff and her husband. It thus appears that, at most, $1,250 represented the community interest in the lot, and since it is conceded that Beda Johnson in acquiring the deed thereto paid $550 of the purchase price, it would appear in any event that she was entitled to such proportionate share of the $4,125 as her payment bore to the purchase price of the lot. In her complaint plaintiff alleged that the first payment of five hundred dollars made upon the contract of purchase was paid out of the separate funds of Neis Johnson. If her allegation be accepted as true, then only $750 paid in the purchase of the lot constituted community funds.