Allen v. Allen
Before: Lorigan
Synopsis
Appeal prom Judgment Taken Too Late—Dismissal.—An appeal from a judgment, taken more than six months after its entry, is too late and will be dismissed.
Adverse Possession against Possessor’s Own Deed—Payment op Taxes.—While a person may acquire title by adverse possession, even as against his own conveyance, still, as an element to constitute such title, in addition to the showing of the other facts necessary to constitute it, he must prove either that no taxes were levied and assessed upon the land, or that he had paid all taxes which were levied thereon.
Divorce—Jurisdiction Over Separate Property op Spouses.—As a general rule, the superior court in a divorce proceeding has no jurisdiction to deal with the separate property of the spouses.
Id.—Title to Property Actually Litigated—Judgment as Bes Adjudicata. — The superior court is vested with general jurisdiction to determine title to real property, whether based on legal or equitable claims; and if the parties in a divorce proceeding make the character of property held by them—whether separate or community ■—an issue in the proceeding, as the court is vested with jurisdiction to determine that question, as fully as if the title were put in issue in a direct action brought for that purpose, the same effect must be given, to its judgment as if such an action had in fact been brought. Its judgment as to the title of property so put in issue is res adju&ieata and conclusive upon both parties with respect to any further litigation on the subject.
Id.—Deed prom Husband to Wipe—Subsequent Action to Set aside Deed.—A judgment in an action for a divorce, determining that property which had been conveyed by the husband to his wife was her separate property, is res adjudicate to a subsequent action by him to set aside the deed to her on the ground of fraud, and for a decree that the legal title was in him as community property. Such judgment is conclusive, not only on matters affecting the legal title which were actually litigated, but also upon those which might have been.
LORIGAN, J.
This action was brought to set aside a deed of land executed by plaintiff to defendant, on the ground of fraud, for a decree directing a reconveyance to plaintiff and quieting his title to the land.
Judgment went for plaintiff and defendant appeals from the judgment and an order denying her motion for a new trial.
Respondent in his brief moves the court to dismiss the appeal from the judgment on the ground that it was taken too late, being more than six months after the entry of the judgment. This appearing to be the fact, the appeal from the judgment is dismissed, and the appeal from the order will alone be considered.
On November 24, 1902, plaintiff and defendant were husband and wife, and on that day plaintiff conveyed to her a tract of land in Stanislaus County. In August of the next year the defendant here brought an action against the present plaintiff, in the superior court of Stanislaus County, for a divorce, in which action she alleged, as to the tract of land involved in the present litigation, that plaintiff had conveyed it to her by the deed of November 24, 1902, and had subsequently made and executed a declaration of homestead upon it. In his answer in the divorce suit plaintiff here admitted
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the execution of the deed to her of this property as alleged by his wife in her complaint. He also filed a cross-complaint, in which he sought a divorce from his wife on certain grounds, and, as to the property in question although admitting in his answer the conveyance to her, alleged that the property was community property of himself and wife. To the cross-complaint the wife filed an answer, denying that the property was community property, but, on the contrary, alleged that it was her separate property.
A divorce was denied the plaintiff and awarded to defendant on his cross-complaint. As to the property rights of the parties, the court found that the tract of land in question had been acquired as community property by the spouses; that no other real property had ever been acquired by the husband, •either as community or as separate property; that the husband on the date mentioned in the pleadings, for a good and sufficient consideration, executed the deed mentioned in the pleadings, conveying to her the fee simple title to this tract of land; that thereafter the wife had been and was the owner of it in fee simple and entitled to possession; that the husband had no right, title, or interest in the property, and the homestead theretofore made and executed by the husband on the land was declared void. A judgment was entered accordingly on July 14, 1904, from which no appeal was ever taken.
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