Roberts Land & Improvement Co. v. Dallas

GRAY, J.,

pro

tem.

The plaintiff, in an action to quiet its title to certain property, appeals from an adverse judg

[88]

ment, assigning as error the exclusion from evidence of three documents and certain testimony offered by it. The parties stipulated that the property was conveyed by deed on December 21, 1914, to John L. Roberts, the common source of title, and that on August 27, 1917, the latter by deed transferred the property to Laura A. Roberts, his wife. To rebut the presumption.raised by section 164 of the Civil Code that the title thereby vested in the wife as her separate property, plaintiff offered the following agreement made by the husband and wife on March 15, 1917 (formal parts omitted and italics supplied) it is mutually agreed . . . that all real estate . . .

held

by either party . . . is community property without reservation and it shall be held as such

until this agreement has been revoked or annulled in writing by mutual consent”.

Defendant’s objection that the agreement was immaterial was sustained.

It is appellant’s contention that because of the terms of this prior agreement, the title conveyed by the subsequent deed still remained in the parties as community property and did not vest in the wife as her separate property. On the other hand, respondent argues that the italicized word “held” limited the operation of the agreement to property owned at the date of the agreement and that the deed was a pro

tanto

revocation of the agreement, in accordance with the italicized phrase of the agreement. Neither grammatically nor by context did the word “held” limit the operation of the agreement to property owned by the parties at its date, but it included therein property subsequently acquired.

(Starr

v.

Case,