Chadwick v. Chadwick

In this action both parties have appealed from that portion of the judgment considered adverse to the interest of the party appealing. Both appeals are presented upon the same transcript and argued in the same briefs. For convenience, we will refer to the parties as “plaintiff” and “defendant,” just as the title to this cause appeared in the trial court.

The action was brought by the plaintiff to secure a divorce from the defendant and division of alleged community property, and involves the question of the validity of two certain agreements dated May 23, 1908. The action for divorce was begun on July 10, 1924. The trial court found one of the instruments, designated as “Exhibit Number 1,” valid, as being simply a property settlement, and determined that the instrument designated as “Exhibit Number 2” was invalid in that it violated the provisions of section 159 of the Civil Code. The decree awarded the plaintiff a divorce and $50 a month as permanent alimony. The appeal of the plaintiff involves the instrument designated as “Exhibit Number 1,” while the appeal of the defendant relates to that part of the judgment declaring Exhibit Number 2 invalid. Exhibit Number 1 is in the words and figures following, to wit:

“I, Ida Chadwick, the wife of William J. Chadwick, of the County of Los Angeles, State of California, for and in consideration of the sum of Eighteen Hundred and Fifty Dollars, United States Gold Coin, to me in hand paid this day by said William J. Chadwick, do, by these presents, grant, bargain, sell and convey unto the said William J. Chadwick,

of the City of San Diego, County of San Diego, State of California, all those certain pieces or parcels of land situated in the City of San Diego, County of San Diego, State of California, and described as follows, to wit: Lots numbered twenty-three and twenty-four, in Block numbered Seven, of Cleveland Heights Addition, in the City of San Diego, County of San Diego, State of California, according to map thereof No. 621, filed in the office of the County Recorder of said County of San Diego, February 4-th, 1890. Also any right, title, interest, and estate, of every name and nature whatsoever, which the said grantor, Ida Chadwick, now has, in or to any and all property of the said William J. Chadwick, which he now has or which he may hereafter acquire, whether the same be located in the State of California, or in any other state in the United States of America, and whether the same be real property, mixed property, or personal property.

“In Witness Whereof, I have hereunto set my hand and seal this 23rd day of May, 1908.

“(Seal) Ida Chadwick.”

This instrument bears the certificate of H. B. Doolittle, a notary public in and for the county of San Diego, setting forth that it was duly acknowledged by the said Ida Chadwick on the twenty-third day of May, 1909, the date of its execution.

Exhibit Number 2 is in these words:

“This Indenture, made this 23rd day of May, 1908, between Ida Chadwick, of the County of Los Angeles, State of California, the wife of William J. Chadwick, hereinafter described, party of the first part, and William J. Chadwick, of the County of San Diego, State of California, party of the second part, Witnesseth: That the said party of the first part, for and in consideration of the sum of ten dollars, to her in hand paid, the receipt whereof is hereby acknowledged, as well as for other valuable considerations to her moving and by her received, does hereby release and forever discharge, for herself, her heirs, executors, and administrators, the said William J. Chadwick, his heirs, executors, and administrators, of and from all debts, dues, sums of money, accounts, agreements, promises, damages, judgments, executions, claims and demands whatsoever, in law or in equity, against the said William J. Chadwick,

which she, the said party of the first part now has, or which he ever had, or which she, or her heirs, executors or administrators can, shall, or may have, in, upon or by reason of any matter, cause or thing whatsoever, by virtue of being his wife, or otherwise.

“In Witness Whereof, the said party of the first part has hereunto set her hand and seal this 23rd day of May, 1908.

“(Seal) Ida Chadwick.

“Witness: H. E. Doolittle.”

This instrument also bears the certificate of H. E. Doolittle, notary public in and for the county of San Diego, reciting that it was duly acknowledged by the maker thereof, before him on the said twenty-third day of May, 1908.

The transcript shows that the plaintiff and defendant intermarried at Council Bluffs, Iowa, on or about the eleventh day of May, 1904, both parties having been previously married. No children were born of this marriage, though both the plaintiff and defendant had children by a prior marriage. For a time after the marriage of said parties they lived in South Omaha, Nebraska, where the defendant conducted a grocery-store and meat market. Later, they moved to Sioux City, Iowa, where, according to the testimony set forth in the record, the defendant deserted the plaintiff on or about October, 1905. From that time until about 1908, it appears that the plaintiff had no knowledge of the whereabouts of the defendant, but having learned from some source that the defendant was in California, came to Oakland in the year 1908 and was informed by friends that the defendant was in San Diego. The plaintiff then returned to Los Angeles, where she had been living for some time, and employed an attorney to ascertain the whereabouts of the defendant. The record shows that through the efforts of this attorney the defendant was located in San Diego in the year 1908. The attorney for plaintiff then demanded of the defendant some monetary settlement, or. that some provision be made for the plaintiff, who appears, at that time, to have been in ill health. Upon receipt of such demand, the defendant employed an attorney, and through the attorneys thus retained by the respective parties, negotiations were carried on which finally culminated in the signing of the instruments which we have hereinbefore set forth, on the day mentioned, and the payment by the defendant,

The plaintiff’s complaint, among other things, alleges that the defendant wilfully deserted her on or about October, 1905, and then attacks the instrument designated as Exhibit Number 1, as follows: “That upon locating the said defendant in the City of San Diego, the said defendant stated to plaintiff that he only owned two lots in the City of San Diego, and that he would sell them and give her $1850.00 if she would give him a property settlement and deed releasing all of her claim upon his estate, and that he, the said defendant, could not sell the said property unless the said plaintiff signed the said deed in settlement; that said statement by the defendant was false and fraudulent, and made wilfully and maliciously and with an intent to deceive the plaintiff and to procure her signature to an agreement releasing her interest, as defendant’s wife, in the community property of plaintiff and defendant.” It is then alleged that the defendant had other community property than the lots referred to. No mention is made in the plaintiff’s complaint of the instrument designated as Exhibit Number 2. The complaint further sets forth that the defendant is possessed of property of the value of $175,000. The answer of the defendant denies the allegations of misrepresentation, etc., sets up the two instruments referred to, and alleges that they were executed as a full, final, and complete settlement of all differences and property rights between the parties. Also, denies that the defendant is possessed of property of the value of $175,000, or of any property of a greater value

For convenience we will first consider the defendant’s appeal from that part of the judgment which holds invalid Exhibit Number 2, as violative of the provisions of section 159 of the Civil Code, in that it does not contain an agreement for an immediate separation of the parties, nor make any provision for the support of the wife. That section provides that a husband and wife cannot, by any contract, 'alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation and make provision for the support of either of them, etc. The defendant, in support of his appeal, calls attention to the fact that, the agreement in this case was made long after the separation; that it is not controlled by

The plaintiff’s appeal tenders the question of the binding force and effect of Exhibit Number 1. Before considering the plaintiff’s argument in support of her appeal it may be stated that there is a distinction between the terms “illegality,” “invalidity,” and “inadequacy” of consideration. To be illegal carries with it the idea that the instrument is not only contrary to law, but contains some element of moral turpitude, while an instrument may be invalid simply because, in the interests of society, the legislature has prohibited the making or entering into the same. Inadequacy of consideration imports nothing of illegality, but may be of such a minor quantity as to render the instrument invalid or unenforceable. We mention this because the plaintiff has called our attention to a number of cases where the instruments under consideration before the court in the cases cited were in most instances either based upon a previous gambling debt or an instrument constituting a renewal of an instrument based upon such a transaction, or a transaction tainted with a like moral turpitude. In so far as Exhibit Number 1 is concerned, we find nothing illegal in any of its terms. Whether it was or was not based upon an adequate consideration was not tendered to the trial court, and so far as the record is concerned, no effort was made to show any such lack. The complaint alleges the possession by the defendant of property elsewhere than the two lots named in Exhibit Number 1, but there is no testimony of the existence of any such property, and we think there is sufficient testimony in the record to support the finding of the trial court that the defendant possessed only the two lots in question, and also, that their value was not in excess of that found by the trial court. Under such circumstances, the conclusion is well supported that on the twenty-third day of May, 1908, the defendant delivered to the plaintiff, or to the plaintiff’s

Again, in the case of Hensley v. Hensley, 179 Cal. 284 [ 183 Pac. 445 ], the supreme court, in considering the subject of confidential relations and the extent to which it affected negotiations between husband and wife who had been living separate and apart for some time, used the following language: ‘1 The husband and wife had been living apart for years. That they were in hostility the suit for maintenance sufficiently proves. The transactions for settlement of her claim were conducted through her agents and his, so there was no chance for personal influence to be exercised by him upon her. There was no presumption of confidential relation such as was found to exist in cases like Brison v. Brison, 75 Cal. 525 [ 7 Am. St. Rep. 189 , 17 Pac. 689 ], and Brison v. Brison, 90 Cal. 323 [ 27 Pac. 186 ], The parties to the contract were dealing ‘at arm’s-length’ (citing cases). The language used in the decision in Diamond v. Sanderson, 103 Cal. 97 [ 37 Pac. 189 ], in which it was contended that a wife declaring on a note given by her husband must overcome a presumption of fraud seems applicable to the facts in this ease. ‘It must appear upon the face of the transaction, or by proof, that there was no consideration, or that the marital confidence was used to take an unfair advantage, or that this confidence was subsequently violated, before the burden is cast upon the plaintiff of sustaining the fairness and the consideration of the transaction against the presumption invoked by appellant. ’ ” Thus, to apply the language to the present case, it would have to appear that there was no consideration or that the marital relation was taken advantage of by the husband to obtain from the

It is further contended on the part of the plaintiff that Exhibit Number 1 is violative of the terms of section 159 of the Civil Code, in that it was not made in contemplation of an immediate separation. If the instrument in question were an agreement at all, which it is not, it is simply a conveyance executed by the wife to the husband for an expressed consideration, the case of Brown v. Brown, 83 Cal. App. 74 [ 256 Pac. 595 ], would be a complete answer to the plaintiff’s contention. In the case of Brown v. Brown, supra, this court had before it the question of the validity o£ an agreement between husband and wife relative to a settlement of property rights, executed after the separation of the parties. It was there held that section 158, and not section 159 of the Civil Code, applied. This court there said (quoting from a previous opinion): “The plain terms of the statute authorize the husband or wife to convey to the other all title and interest in either separate or community property.” "We do not need to enter into a consideration of the cases cited and applied in Brown v. Brown, supra, but will content ourselves with citing that case in which a hearing was denied by the supreme court, as a full and complete answer to the plaintiff’s contention, in so far as it is argued that the instrument is violative of either section 159 or 158 of the Civil Code. While executed at the same time and as a part of the same transaction, the two exhibits which we have considered herein show conclusively that they relate to different subject matters, and therefore the validity of either does not depend upon the validity of both. Even though we read both exhibits as one instrument, the conclusion that Exhibit Number 2 is void does not necessitate a like result as to Exhibit Number 1. It has been held several times that agreements between husband and wife which contain an invalid provision, if the invalid provision can be read out of the instrument without violence as to the remainder thereof, such provision will simply be disregarded. A case in point where two instruments were executed between hus

Some minor contentions have been made by the plaintiff as to the sufficiency of the evidence to support certain of the findings. What we have said shows that the court found sufficient to dispose of the case, and the fact that some of the immaterial findings are not technically supported by the evidence, if such is true, may be disregarded, such as the finding of the court that the plaintiff went to San Diego for the purpose of effecting a full, final, and complete settlement of their property rights. It is wholly immaterial for what purpose the plaintiff went to San Diego on May 23, 1908. All that is material is what was done at that time. If the plaintiff executed Exhibit Number 1 on that date, making the conveyance therein set forth, for a valid consideration, it is of no moment for what purpose the journey was taken to San Diego. What was accomplished or what was done is all that need to have been found by the trial court, and as we have stated, the record shows no attempt to establish inadequacy of consideration at the time of the execution of the instrument. The extent of the defendant’s property possessions at the date of the trial constituted a basis only for determining the allowance to be made to the plaintiff for her support. The extent of this property, whatever it was, accrued and was acquired after the date of the execution of Exhibit Number 1.

It follows from what we have said that the judgment of the trial court must be affirmed in whole, including that part appealed from by the plaintiff, as well as that part appealed from by the defendant. Neither party to recover costs.

Jamison, J., pro tem., and Hart, Acting P. J., concurred.