McCarthy v. McCarthy

DOOLING, J. Separate appeals from two judgments are presented to us on two clerk’s transcripts and a single reporter’s transcript, since the two actions were tried in the superior court at the same time. The parties were husband and wife and the wife, appellant herein, sued the husband for divorce. The husband in turn brought an action against his wife to quiet title to a parcel of real property improved with a residence building consisting of two flats. In the quiet title action the court gave judgment for the plaintiff husband subject to a lien in favor of the defendant wife to secure the repayment to her of the sum of $1,655.

The parties were married in 1942, and just prior to the marriage respondent had purchased the real property here involved making a down payment of $5,000. Before and shortly after their marriage appellant advanced sums of money to respondent aggregating $1,655. Respondent testified that appellant “was continually worrying about the $1600” and that he determined to make a deed of the property to her so that she would be protected in case anything happened to him. The deed was prepared by a notary public and the respondent took the appellant to the notary’s office in the family automobile. She remained outside in the automobile while he went into the notary’s office and signed and acknowledged the deed. What happened thereafter we take from the respondent’s testimony under the familiar rule that an appellate court must take as true the testimony most favorable to the judgment. Respondent took the deed to the car and showed it to his wife and “told her that I made the deed out that would protect her in case anything happened to me.” He then put it in his pocket, the parties went home and he placed the deed in a metal box in which he kept papers of his own and in which nothing belonging to his wife was kept. About 10 months later he learned that his wife had taken [168]the deed from the box and had it recorded. He was angry and upset and demanded the retransfer of the property. About a week later he went to his attorney and commenced an action against his wife to quiet title to the property and caused a lis pendens to be filed. He continued to demand a reconveyance and his wife at one time promised to execute one. Marital troubles followed, there was a suit for separate maintenance filed and later dismissed. These actions were thereafter commenced and only at the time that the present quiet title action was filed was the original one dismissed.

On the question of his intent in making the deed the plaintiff gave the following testimony: