Schumacher v. Truman

[431]

HARRISON, J.

Action to determine an adverse claim to certain real estate in the county of San Mateo.

The findings of fact herein show that on June 8, 1895, and prior thereto, the plaintiff and the defendant Ida J. Martens— then the wife of the plaintiff—were the owners in common of the land described in the complaint, and that on that day they entered into a written agreement, by which the plaintiff was to have the control and management of said land, and that upon his sale of the same, the proceeds thereof should be divided between them, and further, that in case of an action for divorce between them, the agreement should be considered as a settlement of all their property rights; that thereafter an action for divorce was commenced in San Francisco against the plaintiff, by his said wife, in which she asked, in her complaint, that one half of said property be awarded to her; that a copy of said complaint was served upon the plaintiff, and that after its service her attorney stated to him that he would see to it that all his rights were properly protected, and that it was not necessary for him to employ an attorney therefor; that he relied upon said statements, and did not employ any attorney or appear in said action; that thereafter a decree of divorce between them was granted, and that in said decree the defendant Ida— the plaintiff therein—was awarded the undivided half of said property; that said decree was entered of record November 4, 1895; that on November 13, 1896, the said Ida granted the said undivided half of said land to one Morgan, who had been her attorney in the divorce suit, by a sufficient deed of conveyance, which was recorded November 18, 1896; that on February 19,1897, said Morgan conveyed the property to the defendant Truman by a deed of conveyance, which was properly recorded March 8, 1897, and that said Truman paid therefor its full market value; that the said agreement between the plaintiff and his said wife was never recorded, and that Truman had no knowledge of it, or that either of them claimed any interest in the property purchased by him; that before making said purchase he caused a search of the records to be made, and relied thereon in making said purchase; that on November 17,1896, the plaintiff applied to the superior court for an order to set aside the judgment in the divorce suit, and to have the same entered in accordance with the aforesaid agreement between him and his wife, but that no notice of said application was placed of record in San Mateo County, and that Truman,