Keogh v. Noble

VAN DYKE, J.

Pending a suit for divorce, the parties thereto—Gertrude M. Noble, deceased, as plaintiff, against respondent, as defendant—entered into a written agreement, March 13, 1896, by which, after describing various lots of land belonging to the parties as community property, and reciting that the plaintiff in said action had conveyed her interest therein to the defendant, it was agreed that the defendant would pay the plaintiff,—!. The sum of twenty-five dollars

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per month during the time she should remain unmarried; 2. The further sum of twenty-five dollars per month until the real property therein described should have been sold and disposed of; .and 3. That the defendant would manage and take care of the real property to the best interest of the parties, and pay the taxes thereon, and would immediately after the sale of said real property pay to the plaintiff, the party of the first part of said agreement, one half of the net proceeds arising from the sale thereof; it being understood that the defendant might retain out of the one half of the net proceeds coming to the plaintiff all sums of money paid to her in excess of the sum of twenty-five dollars per month, as first agreed upon to be paid to her, together with her proportional share of all costs, charges, or taxes on said property that might be paid by the defendant during the period of the agreement. Thereafter, March 17th, a decree of divorce was duly made and entered in said action so pending. By subsequent agreement, June 18, 1897, the plaintiff, in consideration of one thousand dollars paid to her by the defendant, released her claim to certain real property therein described, and also to the monthly payment in the excess of the first twenty-five dollars, for two years from and after July 1, 1897.

This action was 'brought on the agreements thus modified, to recover,—1. The amount due as monthly payment in arrears, and on account of the land sold; and 2. For an accounting of the rents and profits and a reconveyance of the plaintiff’s interest in the unsold property.

The court, on motion of the defendant, struck out the following portions of the complaint: “That said defendant has received rents, profits, and issues from said property in excess of the accounts and statements by him furnished to said plaintiff, and in excess of the sums by him paid to said plaintiff; . . . that said defendant has knowingly and willfully, by means of false and inaccurate statements and accounts, made with the intent so to do, attempted to deceive said plaintiff as to the amounts now due her, the said plaintiff, on account of her share of the rents, issues, and profits of, from, and to said property arising under and by virtue of said agreement; . . . and that there is now due said plaintiff from said defendant, under and by virtue of said agreement, out of the rents, issues,