McDuff v. McDuff

KNIGHT, J.,

pro tem.

This action was brought by plaintiff against his wife to quiet title to certain real property situate in the city of Long Beach in which the defendant claims a community interest. Judgment was for plaintiff, and defendant appeals.

In the year 1881, four years prior to the marriage of the parties, plaintiff purchased a farm in Kansas for five thousand dollars, paying two thousand five hundred dollars in cash and trading an interest in other property valued at two thousand five hundred dollars. The two thousand five hundred dollars in cash was borrowed by plaintiff,' and plaintiff gave a mortgage covering the farm to secure its payment. In the year 1913 plaintiff sold the Kansas farm for eleven thousand five hundred dollars, and after paying off the mortgage, which then amounted to three thousand five hundred dollars, received a net balance of eight thousand dollars in cash. Of that sum he invested four thousand dollars in the property in controversy here, upon which he borrowed eight thousand five hundred dollars, and erected four houses thereon. Plaintiff is a carpenter and contractor by trade, and contributed some of his time to the construction of the houses.

Appellant contends that part of the profits derived from the sale of the Kansas farm, and with which the purchase of the Long Beach property was made, were the result of the activity, ability, and capacity of plaintiff and defendant, and are therefore community property. The findings and

[177]

judgment of the lower court are in effect a holding to the contrary, and the only question on this appeal is whether or not there is sufficient evidence to sustain such findings and judgment.

[1]

At the time respondent acquired the Kansas farm it was fenced, improved with a dwelling and other structures,, a small portion of it was planted to fruit trees and vines, and some of it was covered with a growth of timber. After plaintiff and defendant were married and moved on to the property no permanent improvements of a substantial character were made. During their occupancy of the property thirty-eight acres were planted to orchard, the cost of the trees being met by increasing the mortgage, but the orchard was an entire failure on account of being destroyed by “borers.” The house was destroyed by fire, but was rebuilt with the money received from the insurance, together with three hundred dollars more which plaintiff borrowed from his father. Other farm outbuildings were constructed, but the cost thereof did not exceed two hundred dollars. They were built with rock obtained on the farm and with lumber cut on the premises by a mill on shares.