Buick v. Boyd

Defendant Benjamin P. Boyd appeals from "a judgment reforming the description of real property in a written contract.

Plaintiff Mary Isabelle Buiek was formerly Mary Isabelle Boyd, wife of defendant Benjamin P. Boyd, and the mother of plaintiffs Alfreida Elinor and Malcolm Glenn Boyd, infant children of the marriage. Defendants Eugene Boyd and Edna Boyd are also children of the said marriage and are made defendants because their consent to be joined as plaintiffs could not be obtained and because united in interest with plaintiffs. Plaintiff John EL Buiek is joined with plaintiff Mary Isabelle Buiek, being her husband at the commencement of the action.

On February 11, 1909, plaintiff Mary Isabelle Buiek, then Mary Isabelle Boyd, commenced an action for a divorce in the superior court of Shasta County on the ground of extreme cruelty. Pending the action, on March 4, 1909, she and her then husband entered into a written agreement settling their property rights, her claims for alimony, counsel fees and

The concluding paragraph of the interlocutory decree reads as follows: “And it further appearing that the rights of the respective parties in and to the property described in said complaint have been equitably adjusted by an agreement between the parties, it is determined that the said property be awarded to the respective parties in accordance with said agreement, dated the fourth day of March, A. D. 1909.”

This agreement was intended to make disposition of all the property which either of the parties claimed to own, some belonging to each being separate property and some the property of the community. It not only purports to adjust all claims to property, but it adjusts all matters of alimony, counsel fees, and the support and maintenance of the minor children. Reciting the pendency of the action, it declares that “the parties hereto are desirous of settling said dispute of claims to the property in controversy and withdrawing the same from the consideration of the court, and whereas, the parties hereto are desirous of making provision for the support of the said minor children and for the son and daughter of the party of the first part herein (Benjamin F. Boyd), Eugene Boyd and Edna Boyd, Now, therefore, it is hereby mutually covenanted,” etc. The contract then awards to the second party (Mrs. Boyd) the ownership and possession of the homestead (describing the lot) theretofore declared. “Also a certain tract of land adjoining said lot, piece or parcel of land being the W14 of the NW 14 of the NE 14 and the NE 14 of the NW 14 of the NW 14= of Section 11, Township 30 North, Range 7 West; also the water ditch and water right belonging to said premises” (describing the ditch). The alleged mistake was in the call “NE 14 of NW 14 of NW14, Section 11,” which should have read “NE14 of NW 14, Section 11.” It is further provided that second party “may continue to own, hold, occupy, possess and use [a certain lot in the town of Redding, describing it, and declared by the agreement to be her separate property], to have and hold the same, together with the rents, . . . during her lifetime or so long as she shall remain single and unmarried, for the better maintenance, support, care and education of herself and the two said minor children, ’ ’ and to go to said four children, Eugene, Edna, Alfrcida, and Malcolm, should she

By appropriate averments in his answer, appellant claims “that plaintiffs are and each of them is precluded or estopped from suing upon the alleged cause of action set forth in said amended complaint herein for the following reasons”; that the said court, on May 3, 1910, “made and rendered its final decree of divorce” dissolving the marriage which had theretofore existed between said Mary Isabelle and Benjamin F. Boyd, and “that no motion for a new trial was made or appeal taken from said final decree and said decree is now in full force and effect”; that said written agreement “was and now is merged in the said final judgment of divorce and the said plaintiffs in the above entitled action are and each of them is precluded or estopped from suing upon the alleged cause of action set forth in the said amended complaint. ’ ’

Appellant’s contention is stated as follows: “The title to the property involved having been adjudicated in the divorce action, the final decree of divorce is res adjudicata and is a bar to the present action. ’ ’

The court found as facts, among others: “That the said plaintiff and the said defendant intended to set forth and de

It is not seriously contended that the evidence was insufficient to support these findings. If there was any evidence to the contrary, it was appellant’s duty to point it out in his brief, which he has not done. (Code Civ, Proc., sec. 953c.)

It .appeared that the parcel of land misdescribed did not, when the agreement was entered into, belong to either of the parties, while the parcel which the court found was intended to be described was a part of the homestead declared by defendant in 1902, while the northwest quarter of the northwest quarter of said section, which included the misdescribed parcel awarded to defendant, was deeded to him by the Central Pacific Railroad Company in July, 1909. The evidence showed that the intention of the parties was that the property described in the homestead should go to plaintiff in the divorce action.

The only controverted question in the case is presented in appellant’s proposition above quoted.

The rule, as stated in the Code of Civil Procedure, section 1911, is as follows: “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. ’ ’ It was competent for the parties in the divorce action to adjust their property rights without the intervention of the court, and in doing so they expressly declared their object to be the settlement of “disputed claims to the property in controversy and withdrawing the same from the consideration of the court.” The court in its decree determined nothing more than that the “property be awarded to the respective parties in accordance with said agreement.” There was no longer any issue as to the property, nor was it necessary for the court to make any determination of the matter. The action of the court did not, in our opinion, amount to such an adjudication as is contemplated by the statute, nor did it constitute a bar to the present action. It added nothing to the validity or force of the agreement. There were in fact but two questions remaining for the court to determine, to wit, whether plaintiff was entitled to the decree of divorce and to whom the custody of the minor children should be awarded. “A former verdict is conclusive only as to facts directly and distinctly put in issue and the finding on which is necessary to uphold the judgment.” (1 Freeman on Judgments, sec. 257.) Where the record on its face shows that an issue before the court was withdrawn from consideration, the presumption that it was adjudicated no

That the court and the parties treated the agreement as withdrawing the property rights from the court is shown by the fact that the agreement disposed of certain cattle to the plaintiff in the action and certain real property to the defendant of which no mention is made in the decree. This issue of property rights having been withdrawn, the present action cannot fairly be said to be an attack upon the judgment of divorce. “The rule undoubtedly is,” as said by Mr. Justice Lorigan in Southern Pacific Co. v. Edmunds, 168 Cal. 415 , 418, [ 143 Pac. 597 , 598], “that a former judgment between the parties to an action is conclusive in all subsequent actions involving the same question, not only as to the matters actually decided in the former controversy, but as to all matters belonging to the subject of the controversy and properly within the scope of the issues which also might have been raised and determined. ’ ’ But as to matters which might have been litigated and decided as within the scope of a former suit, but which were not actually or expressly in issue and adjudicated, the learned justice said: “Only a presumption is indulged in that they were decided. This presumption is, however, a disputable one and may be overcome by showing that although a particular matter was involved in the former action, it was by consent of the parties withdrawn from consideration at the trial and did not at all enter into or constitute any part of the verdict of the jury or final determination of that action.” In point of fact, and it so appears from the face of the record, the property described in the complaint in the divorce action, and in the agreement and referred to in the decree did not include the parcel now involved, and the disposition of the latter was, therefore, not an issue in the original action, and on the face of the record, the judgment would appear not to be a bar, for there was no adjudication as to it. If the rule be invoked that this parcel was a matter “belonging to the subject of the controversy and properly within the scope of the issues which also might have been raised and determined,” the answer is that neither party discovered the mistake in the description of the property, and both parties

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.