Pilione v. Conarty

STURTEVANT, J. Appellant and the respondent were formerly husband and wife. On March 1, 1935, in action number 134696, brought in the Superior Court of the State of California, in and for the County of Alameda, in which the respondent was plaintiff and appellant was defendant, the respondent was granted an interlocutory judgment and decree of divorce from the appellant on the ground of extreme cruelty. The decree provided, among other things, that [533]“plaintiff is hereby awarded the house and lot located at 1346 Washington Avenue, Albany, California.” A final decree of divorce was entered in said matter on March 26, 1936.

On April 7, 1943, the appellant commenced this action to quiet his title to the subject matter of this action. The second count of appellant’s complaint alleges that appellant has, by himself and his predecessors in interest, been in the actual, exclusive and adverse possession of the property continuously for five years immediately prior to the filing of his complaint, claiming to own the same in fee against the whole world, and has paid all taxes of every kind levied or assessed against said property during the period of five years continuously next preceding the filing of his complaint. The respondent’s answer admits all of said allegations with the exception of the payment of taxes. On November 16, 1943, respondent’s counsel stipulated in open court that appellant had paid all taxes levied or assessed against said property.

Respondent testified that in 1936, and shortly after the entry of the final decree of divorce she had a conversation with the appellant in which she asked him to move from the property, and that appellant replied the property belonged to him, that he was not moving out for anybody, and that respondent could move in with him if she wanted to. With the exception of the above, the respondent took no steps to obtain possession of the property until after the commencement of this action when, on May 5, 1943, she had appellant cited in the divorce action to show cause why he should not be punished for a contempt. After several continuances, the court found, on August 6, 1943, that the appellant had the ability to pay $375 due in back alimony and children’s support and ordered appellant committed until he should pay that sum. On the same day the court set aside its order of commitment and continued the matter for further hearing until August 12, 1943, at which time the contempt hearing was dropped and appellant discharged.

In the case at bar, the trial court found that all of the elements of a title by adverse possession existed in favor of the appellant, but declined to grant him judgment quieting his title on the ground that the failure to surrender possession of the said property during March, 1936, was in contempt of the order in the divorce proceeding awarding the property to respondent and barred him from relief in this action.