Brackley v. Brackley

STURTEVANT, J.

The appellant and respondent, husband and wife, shortly before this action was commenced separated and thereafter continued to live separate and apart. On the seventeenth day of August, 1921, the husband commenced the action and in the second amended complaint alleged that the plaintiff and the defendant are husband and wife; that the plaintiff and the defendant are the owners of certain real estate (describing two lots in the city of Hawthorne, county of Los Angeles); that said real estate stands of record in the name of the defendant but said property is the joint property of the plaintiff and the defendant; that the value of said real estate is $4,000; that the plaintiff is the owner of an undivided one-half interest therein and that the defendant claims to own the whole of said property and that the said property is her separate property. On the foregoing facts the plaintiff asked a decree establishing his title of record. The defendant filed an answer in which she denied any ownership rested in the

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plaintiff and alleged that she was the sole owner and that on the twenty-fourth day of August, 1920, about two months prior to her marriage, that she bought the property from J. I. Yorke for the sum of $2,950 and paid down $1,750 and gave a mortgage back to said J. I. Yorke for the sum of $1,200, and that said mortgage was being paid in monthly installments of |35 or more. The ease was tried before the judge of the trial court sitting without a jury. The trial court made findings in favor of the defendant and from a judgment entered thereon the plaintiff has appealed under section 953a, Code of Civil Procedure, claiming that the findings are not sustained by the evidence.

On the trial of the case the defendant was called as a witness and testified that she was formerly the wife of Harry P. Squire residing at Joliet in the state of Illinois. Later Mr. Squire obtained a divorce. In the settlement of their affairs Mr. Squire paid to her in the year 1920 in July $250 and in August $250 and in the latter part of September $2,500. On the 24th of August, 1920, she paid as the first payment on the lots $250. Thereafter on the first day of October, 1920, she made another payment of $1,500, received her deed and executed a mortgage back to the former owner. She testified that all of the payments were made by her out of the moneys so received by her from Mr. Squire. Under her contract she agreed to make the deferred payments in the sum of $35 per month. The defendant further testified that thereafter she made the payments and that she had so paid $546, and that there remained due $654.