Osborn v. Mills

ALLEN, P. J.

The action in the court below was one brought by plaintiff under section 738 of the Code of Civil Procedure, against the defendants, alleging that they claimed an estate or interest in real property adverse to him, and for the purpose of determining such adverse claim. The facts material for consideration upon this appeal, as alleged in the complaint are: That plaintiff and one Kitturia B. Osborn are husband and wife; that plaintiff was the owner and in possession of certain described real property; that the possession thereof and the title thereto were acquired by plaintiff' in 1903. and the consideration paid therefor was from the personal earnings of plaintiff while a member of the marital community; that for the personal convenience of plaintiff the conveyance was made to his wife to hold for the marital com- . munity, subject to the disposition and control of plaintiff; that said wife never made any claim or asserted any right to said premises as her separate property or estate; that said wife never conveyed, transferred, or disposed, or attempted to convey, transfer, or dispose of said property; that on the

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twelfth day of March, 1906, the wife was declared a bankrupt and a trustee appointed; that said trustee, in the year 1908, proceeded to sell and did sell „said premises to defendant Warden for the sum of twenty-five dollars, the premises at the time being of the value of one thousand five hundred dollars; that plaintiff had no knowledge or notice of such attempted sale until in the year 1910; that Warden when he purchased said premises had full knowledge that the premises belonged to the marital community. The ownership and seisin of plaintiff were not denied; nor was it denied, except in an evasive way, that defendant Warden when he purchased said premises had full knowledge of the fact that the same were community property. The court found all of the allegations of the complaint to be true, and that the allegations of the answer and of the special defenses set forth therein were untrue, and rendered judgment in favor of plaintiff, adjudging plaintiff to be the owner of said premises and that the defendants’ claims thereto were invalid and groundless, and. quieting the title of plaintiff to said premises. From this judgment, upon the judgment-roll alone, defendant Warden appeals.

The principal contention of appellant is that plaintiff under the facts of the case possessed no right to maintain the action under section 738 of the Code of Civil Procedure. The right of the husband to maintain an action of this character where the real property involved belongs to the community, although conveyance thereof has been made to the wife and no purchaser has acquired title thereto in good faith and for value, has been recognized by bur supreme court in a number of instances.