Hitchcock v. Rooney

MELVIN, J.

Plaintiff appeals from an order granting the motion of defendant Rooney for a new trial.

The action was one by which the plaintiff sought to quiet his title to a certain parcel of land in the city and county of San Francisco.

Defendant Rooney answered admitting that she asserted an interest in the property by reason of an unsatisfied attachment levied thereon and judgment liens against said land in an action upon a promissory note in which K. T. Rooney was the plaintiff and Marvie B. Hitchcock, wife of Lewis D. Hitchcock, was the defendant. There was a cross-complaint involving the sale of another parcel of land and the alleged fraudulent disposition of the proceeds for the purpose of defeating the claim of K. T. Rooney against Marvie B. Hitchcock, but we do not find it necessary to discuss that branch of the case.

The following undisputed facts were proven or stipulated at the trial and found by the court: The realty in dispute, called throughout the trial the “Clayton Street property,” was conveyed on July 13, 1909, by deed from E. E. and Grace Kelly to Marvie B. Hitchcock, wife of plaintiff. This deed was duly recorded in the following month. On February 28,1912, Marvie B. Hitchcock executed to F. S. Mayer, the wife of S. D. Mayer, her note for $2,350, payable one year after date without interest. On March 17, 1913, Mrs. Mayer assigned and transferred the note to K. T. Rooney, who promptly

[287]

brought suit thereon and caused an attachment to be levied on the interest of Mrs. Hitchcock in the Clayton Street property. Judgment was entered in respondent’s favor in said action in April, 1913. This judgment has been only partially-satisfied. The attachment is still in force. On January 2, 1913, Lewis D. Hitchcock and Marvie B. Hitchcock executed a deed of conveyance of the Clayton Street property to John W. Green, and on May 22, 1913, John W. Green and R. H. Green, his wife, conveyed the said property to Lewis D. Hitchcock, plaintiff herein.

Without setting forth in detail the issues involved in the various pleadings, it is sufficient to say that the controversy turned upon the question whether or not the land had been the community property of plaintiff and Marvie B. Hitchcock at the time when K. T. Rooney’s attachment was levied. The court found that plaintiff was, and at all times since the deed from the Kellys had been, in possession of the property in question; that he and Marvie B. Hitchcock were, and long had been, husband and wife; that plaintiff had purchased said land with money which was the community property of Lewis D. and Marvie B. Hitchcock; that Mrs. Hitchcock had been named as grantee in the deed from the Kellys for no purpose except as the result of habit, custom, and convenience; that plaintiff did not intend said property to be conveyed to his wife by way of gift, but that it was the purpose and intention of both of them that Marvie B. Hitchcock should hold the record title for the benefit of the community; that Marvie B. Hitchcock had never been in possession of, nor the owner in fee of, the Clayton Street property; that the land in question was, and had been since July 13, 1909, the community property of the Hitchcocks; that their deed to Green was not made for any fraudulent purpose; “but it was without consideration and pursuant to and in furtherance of a plan for the transfer of the record title out of the name of Marvie B. Hitchcock and into the name of plaintiff, and made to prevent the property involved therein from being applied to satisfy said notes of Marvie B. Hitchcock.”