Biggi v. Biggi

Husband and Wife—Agreement for Division of Property Pending Divorce Suit—Recognition of Community Property—Release by Wife—Finding against Evidence.—An agreement between husband and wife for a division of property pending an action between them for divorce, in which it was provided that certain laud which had been purchased during their marriage and conveyed to them jointly, should be sold, and the proceeds of the sale should he divided equally between them, such sale to be for not less than a specified sum, and that whenever an offer should be made therefor a third party therein named should be the exclusive judge as to the value of the land, and they both agreed to abide by the judgment of said third party, and to sell said premises for such sum; and which further provided that until the property should be sold the husband should be entitled to its possession and occupancy, paying the wife a specified sum monthly therefor, is a recognition by the husband that the property was community property, and that the wife was entitled to one half thereof; and a clause therein, in which it was recited that the wife “releases and acquits” the husband “ from all and every claim of every character and kind whatsoever to other property, other than said One-lialf interest in said life estate, and the one half of said net proceeds of said sale,” must be construed as relating to other property than that described therein, and not as a release of her interest in the property out of the sale of which she was to receive one half of tho net proceeds; and in an action by the divorced wife to have the land sold find the proceeds divided between the parties thereto, because of a refusal of the husband to sell the land unless he should receive the entire proceeds thereof, a finding that the husband was the owner in fee of the entire tract and that the wife had no interest therein is contrary to the evidence.

Id,—Conveyance to Husband and Wife—Presumption—Community Property —Divorce—Tenancy in Common A conveyance to a husband and wife jointly makes the property conveyed presumptively community property, and their subsequent divorce without any disposition of the property in the decree left them as tenants in common, each holding the legal title to one half of the land.

Id.—Interpretation of Contract—Effect of Breach — Election Remedy— Rescission and Partition—Enforcement.—For the purpose of ascertaining the intention of the parties, and the interpretation to be given to such instrument, all of its parts should be considered; and when so considered, it should be construed as a mutual, executory agreement on the part of both husband and wife to consent to a sale of the land for such sum, not less than the sum specified therein, as might be approved by the third party named therein, and that upon such sale each of them would accept one half of the proceeds thereof, and its breach by either party gave to the other party the right to treat it as rescinded and to bring an action for partition of the land, or to treat the agreement as existing and seek its enforcement.