Delanoy v. Delanoy

THE COURT.

Defendant appeals from a judgment determining that she and plaintiff are each the owners of an undivided one-half interest in certain real property as tenants in common, and decreeing that the property be sold and the proceeds divided as determined in the judgment. The appeal is taken on the judgment-roll alone.

The original complaint was filed in September, 1928. So far as pertinent here, this complaint alleged that prior to February 11, 1928, Frederick William Delanoy and defendant owned the real property involved herein as joint tenants, that on that date Frederick conveyed his interest in the property to his mother, plaintiff herein; that thereupon the plaintiff and defendant became owners of the property as tenants in common. Plaintiff prayed that the property be sold and the proceeds divided between the parties as their interests appeared. Defendant answered this complaint and alleged that Frederick conveyed his interest in the property to his mother by way of gift; that Frederick’s interest

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in the property was the community property of Frederick and defendant; that the deed to plaintiff was voidable at the option of defendant for the reason that she, the wife of Frederick, did not join therein. Defendant likewise alleged that prior to the date of the conveyance she had secured a judgment against Frederick, and that such judgment was a lien on Frederick’s interest in the property. Defendant prayed that if the property be sold that she be paid the amount of this judgment. Defendant likewise filed a cross-complaint in which it was alleged that since 1923 Frederick and the defendant owned the property as tenants in common; that the deed by which the property was conveyed to Frederick and defendant “creates an estate by the entirety”; that Frederick’s interest in the property conveyed to his mother was community property; that plaintiff and Frederick conspired to defraud defendant of her interest in the community property. By her cross-complaint defendant prayed that the deed to the plaintiff be canceled. No mention was made in the cross-complaint of the alleged judgment lien set forth in the answer. Plaintiff failed to answer the cross-complaint and her default was entered in November, 1928. In January, 1930, the plaintiff filed an amended complaint, and later a supplemental amended complaint, in which the allegations of the original complaint are substantially re-alleged, and in addition it is alleged that defendant herein has collected the entire rentals from the premises since February 11, 1928, and plaintiff requests that she be reimbursed to the extent of one-half out of the proceeds from the sale of the premises. The defendant duly answered these amended pleadings.