Babbitt v. Babbitt , 44 Cal. 2d 289 ( 1955 )

SHENK J.

This is an appeal by the defendant from a judgment in which the plaintiff was granted an interlocutory decree of divorce and awarded a parcel of community real property. Her title to that property was quieted as against a third party who was joined as a defendant in the action.

Douglas and Ella Babbitt were husband and wife. In 1949, Douglas, while still married to Ella, commenced to live with Agnes McGowan, also known as Agnes Hansen. While Douglas and Agnes lived together, Agnes contributed from her earnings toward their common livelihood. During 1949 a parcel of improved real property in Los Angeles County was purchased. Title was taken in the name of Agnes McGowan. Both lived on the property. In September of 1951 Agnes brought an action of ejectment against Douglas, claiming full title to the property. Douglas filed a cross-complaint in which he claimed to be the owner of the property and alleged that Agnes was holding it in trust for him. While the ejectment action was pending in the superior court Douglas and Agnes, as parties thereto, stipulated that a judgment be entered by which each party should take a one-half interest in the property and Agnes be awarded a $500 lien against the property. The plaintiff, Ella Babbitt, was not a party to the ejectment action.

The plaintiff commenced this action for divorce against Douglas alleging adultery and cruelty. She joined Agnes as a party defendant alleging that Agnes held the half interest in the real property in trust for the community. The prayer of the plaintiff’s complaint sought a divorce, support, all of the community property, and a decree that Agnes “holds said real property as trustee, to be distributed as community property of the married parties; and such other relief as to the court may seem just.”

Douglas defaulted in the divorce action although he appeared as a witness at the trial. Agnes answered and denied that she held the interest in the real property in trust for the community. The court found the allegations of the complaint as against Douglas to be true and ordered the interlocutory decree of divorce. The court found that although Agnes contributed her earnings to the livelihood of herself and Douglas, the moneys used to purchase the real property were community funds; that title to the property was taken in Agnes’ name to prevent the plaintiff from discovering the transaction; that the plaintiff was not bound by the stipulated judgment in the ejectment action; that Agnes has no right, title or interest in the property, and that it be awarded to the plaintiff along with the remainder of the community property. Judgment was entered accordingly.

Agnes first contends that the evidence is insufficient to support the finding that the property was entirely community property. Evidence was introduced upon this subject. Agnes testified that some of her money went into the purchase of the property, and Douglas testified that Agnes made no payments whatsoever from her money on the purchase price of the property and that the entire purchase money came from his earnings. There is substantial evidence to sustain the trial court’s finding “That the entire purchase price of said real property was furnished by defendant Douglas B. Babbitt from the community funds and earnings of himself and plaintiff, and that no part thereof was furnished by defendant Agnes M. Hansen.”

In addition the court found, and there is substantial evidence to support the finding, “That the two defendants, while living together in open and notorious adultery, conceived the idea and purpose of using said community earnings to purchase an improved parcel or real property and to have title thereto taken in the name of Agnes M. Hansen, the then name of defendant Agnes M. McGowan, for the sole purpose of cheating, deceiving and defrauding the plaintiff; and that pursuant to said design and purpose, and upon the oral promise of the said Agnes M. Hansen to convey legal title to the improved real property to defendant Douglas B. Babbitt, upon his demand . . . Douglas . . . purchased [the] Lot. . . .”

It is contended by Agnes that the judgment in the ejectment action is binding on the plaintiff on the theory that the husband has the management and control of the community property (Civ. Code, §§ 172, 172a) and that the judgment in that action was the result of a bona fide compromise between herself and Douglas concerning their respective rights to the property involved.

The plaintiff, as stated, was not a party to the ejectment suit. The judgment in that action was brought into this case by Agnes as defensive matter. It was proper for the plaintiff in the present action to attack that judgment on any and all legal grounds. (Feig v. Bank of Italy, 218 Cal. 54, 57 [21 P.2d 421]; Manuel v. Kiser, 94 Cal.App.2d 540, 546 [210 P.2d 918]; Stevens v. Kelley, 57 Cal.App.2d 318 [134 P.2d 56].) She interposed the objection that it was not binding on her because of the fraud of Agnes and Douglas and the trial court so found and concluded. This conclusion was justified under the evidence on the theory that the stipulated judgment in the ejectment action could not be disentangled from the fraudulent relationship of the parties thereto, and that it was but another step in the conspiracy between Douglas and Agnes to deprive the plaintiff of her property rights. It was properly held that such an agreed judgment was in effect merely a compromise among wrongdoers in a controversy between themselves as to a division of the spoils. On no principle of right or justice should that judgment be deemed binding on the plaintiff. It is the general rule that a judgment obtained in fraud of the interests of a third- person is not binding upon him (Rest., Judgments, § 91, § 115, comment (d); see Campbell-Kawannanakoa v. Campbell, 152 Cal. 201 [92 P. 184] Anderson v. Bank of Lassen County, 140 Cal. 695 [74 P. 287]; Harada v. Fitzpatrick, 33 Cal.App.2d 453 [91 P.2d 941].) The fraud was abundantly established. Douglas testified: “. . . if I bought the property in my name, I was afraid that my wife would take it away from me perhaps through the court at a later date and that is why I bought it in her [Agnes’] name.’’ The evidence also shows that at all times here involved Agnes knew that Douglas was married to the plaintiff and of the community character of the property. It thus appears that the ejectment action was but a continuation of the fraudulent scheme employed by Agnes and Douglas in their endeavor to defeat the rights of the plaintiff to the property.

Agnes may not prevail on the theory of gift. The record refute any such claim. Moreover, a wife during the existence of the marriage may set aside a gift of community property by the husband to a third party without her consent. (Odone v. Marzocchi, 34 Cal.2d 431, 438 [211 P.2d 297, 212 P.2d 233, 17 A.L.R.2d 1109]; Britton v. Hammell, 4 Cal.2d 690, 692 [52 P.2d 221].)

Agnes further contends that the judgment, insofar as it quieted title to the property in the plaintiff, exceeded the prayer and gave relief upon a theory different from that presented by the pleadings. The plaintiff prayed for general relief and the facts upon which relief was based were alleged in the complaint. The action was contested. In such a case the prayer does not limit the relief which may be granted provided such relief is “consistent with the case made by the complaint and embraced within the issue.” (Code Civ. Proc. § 580; see Woods C. I. Ditch Co. v. Porter S. Ditch Co., 173 Cal. 149, 153 [159 P. 427]; Johnson v. Polhemus, 99 Cal. 240, 244 [33 P. 908].) The result in this ease is within that rule.

Finally, Agnes complains that the trial court failed to recognize a $500 lien against the property awarded her in the ejectment action. As previously pointed out, that judgment is not binding upon the plaintiff. However, at the trial the plaintiff’s attorney stipulated that Agnes provided the money from her own funds for the purchase of an icebox and a stove, which were left in the house and that the purpose of the $500 lien was to secure to her a reimbursement for that expenditure.

It is the rule generally that gas stoves or ranges when installed in a dwelling are not fixtures and that electrical appliances such as refrigerators and stoves are personal property and do not become a part of the realty where, as here, they are movable and can be disconnected by pulling a plug or unscrewing a gas connection. (Daniger v. Hunter, 114 Cal.App.2d 796, 798 [251 P.2d 353].) There seems to be nothing in the law of this state which would confer upon Agnes a lien upon the real property merely because personal property belonging to her is upon it. The right to the personal property which she claims was not asserted by any of the pleadings. It was therefore not an issue in the case and the trial court propertly refrained from deciding that question.

The judgment is affirmed.

Gibson, C. J., Traynor, J., and Spence, J., concurred.