Gallagher v. Gallagher

MONCUR, J.,

pro tem.

This is an action brought by plaintiff Edna J. Gallagher, wife of defendant Hugh P. Gallagher, against her husband and his two sisters to cancel a deed made by plaintiff’s said husband to the two sisters of a two-thirds interest in certain real property in Tuolumne County. Hugh P. Gallagher defaulted. The two sisters answered and obtained judgment, from which plaintiff appeals. The complaint alleges that the property described in the deed sought to be set aside was the community property of plaintiff and her said husband and that said deed was without consideration and was made without plaintiff’s con

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sent and was an attempt to make a gift of the said interest in said property to the said sisters. The defendants Rose Rachford and Jane Phillips in their answer to the-complaint denied the property was community property and set up as an affirmative defense the following: That Patrick Gallagher and Eliza Gallagher, the father and mother of Hugh Gallagher, Rose Rachford, Jane Phillips and also Henry Gallagher, the latter not being a party to this action, on October 13, 1909, by deed conveyed the property in suit to Hugh P. Gallagher to hold the same in trust; that said Patrick and Eliza Gallagher intended to convey the property to Hugh Gallagher to take and hold a one-fourth interest as his own and to hold in trust a one-fourth interest for his brother Henry and a like interest for each Rose and Jane. Briefly, the facts in the case arc as follows: Appellant and Hugh Gallagher married March 18, 1903, and have continued since that time to be husband and wife. All of the property involved belonged to Eliza Gallagher as her separate property except a twenty-acre tract known as the Gallagher placer mine, the latter property being community property of Patrick and Eliza Gallagher. On October 13, 1909, by ordinary form of grant, bargain and sale deed Patrick and Eliza Gallagher conveyed all of the property to Hugh Gallagher. The deed recites a consideration of $2,500. From 1915 to 1920, appellant and Hugh Gallagher were living together, but in a strained and unhappy relation. From 1920 to February, 1925, they lived separate and apart. In March, 1917, Hugh made the deed attacked to his sisters. It was made without appellant’s knowledge or consent. Appellant and Hugh Gallagher became reconciled after a' serious illness of appellant in February, 1925. Appellant did not know of the -deed sought to be annulled herein until February, 1925; and at the time said deed from Hugh Gallagher to his sisters was made divorce proceedings were in contemplation between said Hugh and his wife. It further appears that prior to Hugh’s marriage to appellant he had contributed from time to time amounts for the support of his mother and father and after his marriage, he continued to contribute sums from time to time for their support, the total amount of such contribution from Hugh after his marriage to appellant exceeding the sum of- $2,200; also the sisters contributed some amounts for the support of their