Asels v. Asels

BURNETT, J.

The action was for partition of 640 acres of land in San Joaquin County, which in 1906 was purchased in the joint names of plaintiff and defendant with money which was partly community and partly the separate money of the plaintiff, but the moneys had been so intermingled that it was held by the trial court to have become community property. The court ordered a partition of the land and from the final decree of partition this appeal has been taken. The only defense to the action grew out of and was based upon an agreement in writing made by the parties on the twentieth day of October, 1916. Said agreement recited that plaintiff and defendant were the owners of the land (describing it) and that there had been a misunderstanding and disagreement between them as to the distribution of the money received from the crops raised on said land, and that they had consulted with their respective counsel and had agreed upon, “and do hereby agree upon the following: 1. That there shall be no division or partition between the parties hereto, of the hereinbefore described land and premises.”

Paragraphs 2 and 3 of said agreement related to certain moneys in the possession of the Fabian-Grunauer Company and moneys deposited in the Bank of Tracy in the name of either or both of the parties to the agreement; being moneys received for the sale of grain raised on said land during the farming season of 1915 and 1916, and it provided that these moneys should be divided equally between said parties and that said division should constitute a full and final settlement as to all matters between them after the date of the agreement.

[576]

Paragraph 4 is as follows: “It is mutually contracted and agreed by and between the parties hereto that the said David Asels shall farm the hereinbefore described land, as he has done in the past, and he shall keep a book wherein shall be truly set forth all expenditures made by him, which said book shall always be accessible to the said Jannett Asels, and any matters therein set forth which she does not understand, shall be fully explained to her by the said David Asels, and she shall be informed of all costs and expenses of farming, and upon a sale of the crops each year, there shall be deducted from the amount realized from said sales all of the aforesaid expenses, and the balance of the moneys realized, each year, from the sale of crops raised on the aforesaid lands, shall be divided equally among and between the parties hereto, which said division shall be made upon the sale of said crops, each year.”