McCracken v. McCracken

DESMOND, P. J. From a judgment in favor of plaintiff in a partition suit, defendant appeals. He feels aggrieved because the court sustained objections to various questions which his counsel propounded, based upon allegations in his answer. Since these questions all related to immaterial matters, we find no merit in the appeal.

Plaintiff in her complaint alleged that she and the defendant were the owners, as joint tenants, of Lot 13, Block B, Tract No. 11734, in the county of Los Angeles; that their estate in the property consisted, as to each, of an undivided one-half interest; that the premises were subject to an encumbrance in the form of a trust deed securing a note upon which the sum of $2,169.66 was due; that she had employed an attorney to file the suit which was for the common benefit of all parties; that a title report upon the real estate had been secured and was available for examination. She prayed for a partition of the premises according to the respective rights of the parties, or if partition could not be had without material injury to those rights, then for a sale of the premises, payment of the encumbrance to be made and then division [873]of the remaining proceeds between the parties according to their rights after payment of costs and attorney’s fees.

The defendant answering admitted that he lived in Los Angeles County; that the property, as described, was located therein, but denied generally all the other allegations of the complaint. Further answering, he alleged that all payments upon the property had been made by him and the interest therein purchased was intended to be his sole and separate property and he believed the records would show this intent and effect, but if not, he requested that a hearing be had and “if these facts be so ascertained, then the said property and all of it and all interests therein shall be so decreed to be in him solely and the property to be his sole and separate property. ” Continuing, he stated that he and the plaintiff had not been married, were not husband and wife, that there was no community property relationship existing between them, and any property acquired by either was separate property; that therefore the court was without jurisdiction to order a partition, division or sale of the property, “and the defendant hereby Demurs to that part of the complaint, concurrently ■with the answer that presumes to state a cause of action and particularly which requests and demands a partition, division or sale.” This pleading closed with a prayer that all equity in the real estate be declared the sole and separate property of the defendant and that the plaintiff take nothing.