Beeler v. Beeler

DORAN, J. The appeal herein is from a judgment entered after the sustaining of a demurrer to the third amended complaint, without leave to amend.

[42]Plaintiff’s original complaint, denominated a complaint to quiet title, and the succeeding three amended complaints, allege in varying terms, as stated in appellant’s brief, “that matrimonial difficulties had existed between the parties and that a contract had been made settling their property rights. . . . that the parties reconciled and that at the time of said reconciliation, and after said reconciliation . . . plaintiff and defendant intended to and orally agreed that resumption of the said matrimonial relationship and cohabitation . . . would abrogate the said agreement and render the same null and void and of no effect; that by reason of said reconciliation, the terms, conditions and provisions of said property settlement agreement were cancelled and annulled, and are now cancelled and annulled,” etc.

The complaint seeks to quiet title to plaintiff’s alleged community property interest in and to certain real property which was transferred to defendant under the terms of the agreement. As pointed out in respondent’s brief, the third amended complaint here involved, “fails to describe any property whatever, either directly or by reference, to which title is sought to be quieted,” although the original complaint had definitely described several parcels.

Respondent’s brief also notes that the third amended complaint alleges that the parties became reconciled on August 8, 1951, the day of trial, on which date the settlement agreement is stated to have been both executed and mutually cancelled, and that an interlocutory decree of divorce was granted on August 24, 1951.

A further inconsistency is pointed out in that although it is alleged that the property settlement was “executory,” the complaint states that “the plaintiff herein received things of value under and by' virtue of the terms of said property settlement agreement,” and that “by agreement made at the time of said reconciliation each of the parties was to keep and maintain [as] his and her property all that they had taken under and by virtue of the terms of said agreement,” which property plaintiff “does not intend to return to the defendant.”

The principal defect in the third amended complaint, is stated as follows in respondent’s brief: “With refreshing frankness, plaintiff states that she herself received property of value under the terms of the property settlement agreement she seeks to have set aside and that she intends to keep this property as her separate property and does not intend