Smith v. Smith

NOURSE, J.

Action to quiet title. Judgment was rendered in favor of defendant on her cross-complaint, from which plaintiff appeals.

Plaintiff and defendant Phelia L. P. Smith are husband and wife. The property which is the subject of this litigation consists of a lot, with dwelling-house thereon, situate in Long Beach, California. The complaint alleged that, at the time of the commencement of this action, plaintiff was the owner and in possession of the lot in question; that said lot was purchased and improved subsequent to the marriage of plaintiff and defendant Smith with the separate funds of plaintiff and the community funds of plaintiff and defendant Smith, and the deed for convenience was taken in the name of defendant Smith; that defendant Smith had encumbered the same by giving a trust deed to defendant The Title Insurance and Trust Company to secure the repayment of money had from defendant Long Beach

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Savings Bank and Trust Company, and had used the money thus acquired without the knowledge or consent of plaintiff to the detriment of plaintiff and his interests in said property. Defendant Smith answered and cross-complained, denying the allegations of the complaint and setting up title in herself as her separate property and estate. The trial court found that the property was neither purchased with the separate funds of plaintiff and the community funds of plaintiff and defendant Smith, nor the separate funds of plaintiff. On the contrary, the court found that defendant Smith acquired, by assignment from her sister, as a gift, her equity in a contract for the purchase of lot 8, on which the sister had paid the sum of $335, leaving an unpaid balance of $165, which defendant Smith thereafter paid out of her separate funds.

Appellant contends that the property in question is community property because it was acquired subsequent to marriage and with community funds.

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This contention is based upon the testimony of appellant that the assignment was not made as a gift to his wife, but that she purchased her sister’s equity in the lot for fifty dollars which he furnished for that purpose. This merely created a conflict in the evidence, and the finding of the court that it was a gift is conclusive as to that fact. Appellant further argues that the $165 balance paid by defendant Smith on the purchase price of the lot was money derived from a millinery business conducted by Mrs. Smith subsequent to their marriage and hence was community property.