Ives v. Connacher

ANGELLOTTI, J.

This is an appeal from an order denying defendant’s motion for a new trial in an action brought by plaintiff against the administrator with the will annexed of the estate of his deceased wife, to quiet his title to a lot of land

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in Selma, Fresno County, being the west half of the southwest quarter, and the southeast quarter of the southwest quarter of section 31, township 15 S., range 21 E., M. D. M., the theory of plaintiff being that such property was community property of himself and wife at the time of her death, February 23, 1910, and that, therefore, the same belongs to him without administration. (Civ. Code, sec. 1401.)

Plaintiff and deceased intermarried December 27, 1903, and continued to be husband and wife to the time of her death. The property in question was purchased from the. German Savings & Loan Society on March 6, 1906, and was occupied by the parties as a residence up to the time of the death of the wife. The purchase price was sixteen hundred dollars, payable one fourth cash, and the balance in one, two, and three years, with interest on the deferred payments. The evidence is such that we must assume, in view of the findings, that the first payment was made by plaintiff from community funds, fifty dollars as a cash deposit at the time of concluding the bargain, and three hundred and forty dollars on March 30, 1906. The receipt given for the cash deposit of fifty dollars, which also stated the terms of the purchase, named plaintiff as the party paying the money and named no other person as purchaser. A conveyance of the property, the same bearing date March 6, 1906, was thereupon executed and delivered by the German Savings & Loan Society to

“Z.

T. Ives and Annie Ives, his wife.” This conveyance was recorded April 3, 1906. For the balance of the purchase price notes payable respectively one, two, and three years thereafter and signed by both Mr. and Mrs. Ives, were made and delivered to the grantor, and a mortgage of said property to secure the payment of said notes was also executed and delivered by them to said grantor. It was alleged in the complaint and not denied.in the answer that while the title to the property was taken in the name of both plaintiff and wife, plaintiff did not intend thereby to make a gift thereof of any part of the real estate to the wife and did not in fact make such gift, and that there was no contract or agreement between them that the title of any of said property should vest in her as separate property, so that these facts must be taken as established. We shall assume that the evidence must be taken as showing without conflict that the first and second