King v. King

WILSON, J. assigned. Plaintiff filed two actions against defendant simultaneously, one for divorce, the other to quiet title to real property. The cases were tried at the same time and on the same evidence. Plaintiff recovered judgment in each case and defendant has appealed.

The parties were married in March, 1940, and shortly thereafter opened a joint bank account into which both deposited funds. Property known as the Sherbourne property was purchased and title taken in the names of the parties as joint tenants. The purchase, however, was made with plaintiff’s separate funds. In October, 1940, plaintiff and defendant executed a deed to plaintiff vesting title to the Sherbourne property in her as her separate property. The property was thereafter sold and the proceeds used in the purchase of the Arcadia property, which is the subject of the instant action to quiet title.

Title was taken in the names of the parties as joint tenants, and they resided together on the property thereafter. When defendant was served with process in the two actions before this court he consulted with an attorney but did not file an answer in either ease. Plaintiff and defendant had several conversations concerning a property settlement. Defendant contended that he should receive half of the Arcadia property. At the request of plaintiff her attorney prepared a property settlement agreement in which defendant disclaimed any interest in the Arcadia property and declared that if a decree should be entered against him without costs it was his intention that title should vest in plaintiff as her separate property “for the reason that all of the purchase money therefor was taken from the separate property” of plaintiff. The agreement was sent to plaintiff through the mail by her attorney and thereafter was signed, together with a disclaimer in the action to quiet title.

The default of defendant was entered in both cases, the disclaimer was filed in the quiet title suit, the property settlement agreement was filed in the divorce action, and a judgment was entered in each case in favor of plaintiff. There[79]after defendant moved to set aside and vacate both judgments and his motions were granted. Thereupon the actions were tried resulting in judgments for the plaintiff, the appeals from which are now before us.

After the default was set aside defendant filed answers in which he alleged that the property settlement agreement and the disclaimer were secured by plaintiff through fraud, misrepresentations and undue influence. The court found that such allegations were untrue, and defendant maintains on this appeal that the finding is not supported by the evidence.