Taggart v. Shepherd

California Court of Appeal Apr 21, 1932 No. Docket No. 7175.Published

Before: Tappaan

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Holding. The court held that a wife is liable for the reasonable value of the use and occupation of premises occupied by her and her husband as a necessity of life, regardless of whether the possession was tortious or based on an express contract. The obligation is one implied in law, and the wife's separate property is liable for such debts under Civil Code section 171.

Issues

Whether an action for the use and occupation of real property can be maintained when the possession is alleged to be tortious.
Whether a wife is liable for the reasonable value of premises occupied by her and her husband as a necessity of life under Civil Code section 171.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The obligation resting upon defendants was one implied in lato, as distingxiished from one implied in fact. Quasi contract rather than true contract.”

“The separate property of the wife is liable for the payment of debts contracted by the husband or wife for necessaries of life furnished to them or either of them while they are living together.”

“That lodging and shelter are necessaries of life is not questioned.”

TAPPAAN, J.,

pro

tem.

Plaintiff recovered judgment against defendants, who are husband and wife. The wife only appeals from this judgment. The appeal is based upon the judgment-roll.

The action, denominated by the plaintiff as an “action for damages for withholding real property”, was instituted by plaintiff in his capacity as trustee. Riveroll,- for whom plaintiff was trustee, had been declared a bankrupt on October 26, 1928. On October 20, 1928, defendant and appellant, Rolena B. Shepherd, entered into a written lease of the premises here in question with the IIollyM'ood Holding Corporation, which at that time M’as the record owner of the premises. The court in its findings filed herein

[757]

found that Kiveroll, the bankrupt, was in fact the true owner of the premises at the time this lease was made. The defendants occupied the premises from November 1, 1928, until about March 10, 1929, when they removed therefrom pursuant to an order made by the referee in bankruptcy.

The court found that the occupation of the premises by defendants constituted, as to them, necessaries of life during the term of their occupancy. The court also found that the arrangements or negotiations for the lease of the premises were made by the' defendant C. J. Shepherd, and that appellant took no part therein, except to sign the lease of the premises as lessee at the instance and request of her defendant husband. Appellant’s contention is that the action, as stated by plaintiff, is one in tort and must be deemed to exclude the idea of

assumpsit

founded upon implied contract; that, the action sounding only in tort and there being no evidence that appellant, a wife, acted of her own volition in the matters complained of by plaintiff, her husband and co-defendant only can be held liable.

That this action is not based upon an express contract or

one implied in fact

is made clear when the material allegations of the complaint are considered. The complaint alleges: “That on November 1st, 1928, said defendants entered upon said real estate

Taggart v. Shepherd

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TAPPAAN, J.,

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