Oliver v. Sperry

California Supreme Court Mar 1, 1934 No. Docket No. Sac. 4789.Published

Before: Shenk

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Holding. The court affirmed the final judgment in partition, holding that a deceased plaintiff's interest may be allotted to their legal representative upon substitution and that an assignee of a property interest takes that interest subject to existing liens and proportionate costs.

Issues

Whether a deceased plaintiff's executrix may be substituted in a partition action and receive the decedent's interest.
Whether an assignee of a property interest takes that interest subject to existing liens and costs.
Whether the right of a party to commence a partition action can be challenged on appeal from a final judgment after the interlocutory decree has become final.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Only such matters may be reviewed on appeal from the final judgment as have intervened subsequent to the rendition of the interlocutory decree.”

“In the event of the death of a party the proceedings are not “delayed or suspended”, and the legal representatives may come in by substitution.”

“Carpenter acquired only the interest which Miller had (sec. 766, Code Civ. Proc.), and he took the burdens with the benefits.”

SHENK, J.

—J. E.. Oliver, the surviving husband of Harriet A. Oliver, deceased, brought this action to partition

[329]

certain, real property in San Joaquin County owned in part by the deceased wife in her lifetime. An interlocutory decree was entered which determined the right of the respective parties and ordered partition as follows: One-fourth interest to J. E. Oliver; one-fourth interest to Charles Elmer Miller, son by a former marriage and only surviving issue of Harriet A. Oliver, deceased; and one-half interest to Carrie Evelyn Sperry. Charles Elmer Miller appealed from the interlocutory decree, contending that Harriet A. Oliver had no interest in the property, and that as a consequence the surviving husband had no interest. The interlocutory decree was affirmed.

(Oliver

Sperry,

97 Cal. App. 27 [274 Pac. 1030].) The referees appointed by the court in the interlocutory decree filed their report dividing the property in accordance with the terms of the interlocutory decree. Thereafter A. H. Carpenter was permitted to intervene and set up an assignment to him of the interest of Charles Elmer Miller. The report of the referees was confirmed and a final judgment in partition was entered wherein property representing a one-fourth interest was allotted to Carpenter; property representing a one-half interest was allotted to Carrie Evelyn Sperry

•

and property representing a one-fourth interest as allotted to Minnie Bruse Oliver, executrix of the last will and testament of J. E. Oliver, deceased. Carpenter has appealed from the final judgment on the judgment-roll alone, claiming error in those portions of the final judgment, (1) which set apart a one-fourth interest in the property to Minnie Bruse Oliver, as executrix; (2) which determined that Carpenter was bound to pay certain charges which were a lien on the interest of Charles Elmer Miller, his assignor, and his proportion of attorney’s fees and costs; and (3) which determined that J. E. Oliver was entitled to commence the action.

Considering the last point first: Upon the death of Ms wife, J. E. Oliver was vested with an interest in the property. (Sec. 1386, subd. 1, Code Civ. Proc., sec. 221, Prob. Code.) On the record presented he was such owner as a tenant in common with the other owners. He was therefore authorized to commence the action under section 752 of the Code of Civil Procedure. Furthermore, this question and the question of the interests of the re

Oliver v. Sperry

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SHENK, J.

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