Glass v. Glass

Appeal by plaintiff from a portion of the judgment of the superior court of Los Angeles county, and from an order denying a new trial.

Plaintiff in her complaint, which was one for divorce based upon grounds of extreme cruelty, joined therewith an action to quiet her title as against defendant to an undivided one-half of certain described premises, claiming the whole thereof to be her separate estate. Defendant answered, joining issue upon all of the allegations of the complaint and further filed a cross-complaint for a divorce, charging plaintiff with extreme cruelty, and in addition alleged that the whole of the premises described in the complaint were his separate estate; that plaintiff had obtained a conveyance from defendant of an undivided one-half- thereof upon the representation and promise that she would pay and discharge a mortgage lien existing upon the whole of said premises; that this she had failed and refused to do and by reason thereof the consideration for said conveyance had wholly failed. Plaintiff answered his cross-complaint, denying that she ever made such promise and that said property was the separate estate of defendant. Upon the trial the court found both parties guilty of extreme cruelty, one toward the other, but nevertheless granted plaintiff a divorce. Upon the issues raised in relation to the property described the court found that the property mentioned was of the value of $2,500 and was the separate property of the defendant; and further, that the agreement of plaintiff to pay such, mortgage was the sole consideration for the conveyance to her of the undivided one-half ; and further, that the property being subject to a declaration of homestead, the same was awarded to defendant under section 146 of the Civil Code. The court further found

Appellant contends that under the authority of Reid v. Reid, 112 Cal. 277 , [ 44 Pac. 564 ], no jurisdiction in divorce proceedings is in the court to dispose of the separate property of either party. This is true in an ordinary proceeding for divorce. But in the case under consideration the action instituted by plaintiff was dual in its character, seeking, as it did, not only a divorce, but an adjudication as to the separate character of certain described property, and a decree in effect quieting her title thereto. The issue was fairly made as to the property and both parties submitted the question to the court for determination and neither party made any objection to the joinder, nor to the evidence offered in support of their respective claims, and the court, under the pleadings and circumstances of the trial, had jurisdiction to determine the question involved as to the character of this property and to quiet the title of the rightful owner thereto.

It is further insisted that the agreement to pay the mortgage was a personal one and not a condition of the conveyance, and even if it were a condition, no evidence was offered to show that the mortgage was either due or payable. The court found, and there is evidence in its support, that plaintiff made the agreement and that it was the sole consideration for the conveyance to her of the undivided one-half interest, and that she never paid any part of such mortgage debt. This agreement she repudiates in her answer, and in her original complaint lays claim to the whole of the property. It is obvious from the position assumed by her that she never intended to carry out this agreement. “A promise made with the intention of not performing it constitutes a fraud for which a contract may be rescinded or avoided.” (Russ etc. Co. v. Muscupiabe etc. Co., 120 Cal. 530 , [ 65 Am. St. Rep. 186 , 52 Pac. 995 ].) The total failure of consideration made it unnecessary to give notice of rescission before bringing the action (Field v. Austin, 131 Cal. 382 , [ 63 Pac. 692 ]), and the repudiation of the contract rendered the matter of its

It is next contended that the court was without jurisdiction to vacate the former order in relation to attorney’s fees. That such order may be entered as a judgment, and when so entered an appeal will lie, is no longer an open question; but such order may be made ex parte and is usually so made. (Mudd v. Mudd, 98 Cal. 320 , [ 33 Pac. 114 ].) This, of course, comprehends previous service of process. By section 166 of the Code of Civil Procedure, orders which are usually granted in the first instance upon ex parte application may be made at chambers. Section 937 of the Code of Civil Procedure provides that orders made out of court without notice may be vacated or modified without notice. All intendments are in favor of the judgment of vacation made by the court, and in the absence of any showing to the contrary it will be presumed that the court made the order in the manner and under such circumstances as justified the subsequent vacation and the final judgment. “The rule with reference to the power of a court to revise its own action suffers an exception in the case of ex parte proceedings.” (In re Sullenberger, 72 Cal. 552 , [ 14 Pac. 513 ].) The record discloses that the court was imposed upon when the order for fees was procured. “The object of section 137 of the Civil Code is to enable the wife to properly present her cause of action, . . . and if she can do this by reason of the fact that she has sufficient separate estate, . . . the court would not exercise a proper discretion in directing the husband to defray her expenses in the case. (Mudd v. Mudd, 98 Cal. 320 , [ 33 Pac. 114 ].) Plaintiff in the complaint, and upon which the order was based, alleged that she had no separate estate. This the court found upon the final hearing to be untrue; that, on the contrary, she was possessed of an income-producing separate estate. Where an order ex parte has been procured not in consonance with law, and from which rank injustice must

We find no error in the record, and the judgment and order are affirmed.

Smith, J., and Gray, P. J., concur.