Aker v. Aker

• Decision Date: 15 February 1933
• Docket Number: 5896
• Citation: 52 Idaho 713,20 P.2d 796
• Parties: DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant
• Court: Idaho Supreme Court

20 P.2d 796

52 Idaho 713

DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant

No. 5896

Supreme Court of Idaho

February 15, 1933

HUSBAND AND WIFE-DIVORCE-DIVISION OF PROPERTY-TRUSTS-EVIDENCE-APPEAL AND ERROR.

1. Deed from mother to son was as to son's wife presumed community property, and mother claiming such property had burden to show contrary (I. C. A., sec. 31-907).

2. Rights in property deeded to husband by his mother could be determined in wife's divorce action.

3. Wife could not be bound by conditional clause in deed from mother to son, in absence of knowledge of son's wife of such clause and estopped by later silence.

4. Where community property is involved, husband's disclaimer does not preclude wife from defending or prosecuting her rights thereto (I. C. A., secs. 7-901, 7-902, 7-903, 9-402).

5. Wife suing for divorce, and asserting property deeded to husband by his mother was community property, held not required to show express or resulting trust therein (I. C. A., sec 31-907).

6. Wife suing for divorce and for determination of property ownership held not bound by limitation, where she knew of deed from husband's mother to him, and had no reason to raise issue regarding community property until effect of deed was questioned by husband and mother.

7. Evidence in wife's divorce action justified finding that deed of husband's mother to him was delivered without reservation clause reciting deed was to take effect on mother's death.

8. Evidence in wife's divorce action sustained finding that realty deeded by vendor to husband's mother and by mother to husband was purchased with community funds except specified share awarded mother.

9. Where property stood in name of community, husband's mother asserting express or resulting trust therein had burden to establish trust by clear and convincing evidence.

10. Failure of mother to record deed to son did not avail mother in claiming interest in community property of son and his wife, where creditors' rights were not involved, and mother attempted no further transfer of property.

11. Statutes providing written instrument is presumptive evidence of consideration and that burden of showing want of consideration lies on party seeking to avoid instrument did not create presumption that property mother deeded to son and claimed by son's wife as part of community was purchased by mother's own funds (I. C. A., secs. 28-103, 28-104).

12. Husband as head of community has unrestricted authority to repay trust funds or borrowed money out of separate or community funds or earnings (I. C. A., secs. 31-902, 31-913).

13. Resulting trust may be established by operation of law if party fails to establish express trust, because not in writing (I. C. A., sec. 16-504).

14. Mother deeding property to son and which was claimed by son's wife as part of community had burden of establishing trust therein (I. C. A., sec. 16-504).

15. Where mother deeding property to son and which was claimed by son's wife as part of community was awarded trust therein to limited extent, without writing showing express trust mother's apportionment must rest on resulting trust established by parol evidence (I. C. A., sec. 16-504).

16. Mother claiming interest in community property of her son and his wife could not complain because not permitted to show at what time son came to state of suit, and fees he received as an attorney in other state, in absence of showing she was prejudiced, and offer showing fees received in other state were used to purchase property involved.

17. Conversations between husband and wife not made in presence of husband's mother held admissible against mother claiming interest in community property where husband acted as mother's agent.

18. Statements of agent within scope of authority are binding on principal.

19. Mother claiming specified community property of son and his wife and not repudiating portion of judgment awarding her part thereof could not urge son was not her agent to extent he used mother's funds in purchasing property involved.

20. Amendment at conclusion of case not changing nature of cause of action could not be complained of where causing no prejudice, and parties tried case on such theory.

21. Whether wife knew of conditional clause in deed from husband's mother to him, so as to estop her from contending it was not there when deed was first prepared held for trial court.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

In action for divorce, collateral action for determination of ownership and division of property. Judgment in part for plaintiff on property issue. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Oppenheim & Lampert and Ira E. Barber, for Appellant.

The legal and equitable presumptions are that appellant purchased the property with her own funds. (Secs. 5663, 5664, 7974, C. S.; 18 C. J., sec. 499, p. 421.)

The burden of proof was upon plaintiff to show that the property was acquired with community earnings. (Secs. 5376, 5378, 5664, C. S.; 22 C. J., Evidence, secs. 14, 17; 21 C. J., Equity, secs. 184, 185, 186, 671, 672; Littler v. Jefferis, 36 Idaho 608, 212 P. 866; Bates v. Papesh, 30 Idaho 529, 166 P. 270; Wilkerson v. Aven, 26 Idaho 559, 564, 144 P. 1105.)

The husband, as the head and manager of the community, had unrestricted power and authority to repay trust funds or borrowed money out of either separate or community funds or earnings. (Secs. 4655 and 4666, C. S.; Holt v. Empey, 32 Idaho 106, 107, 110, 178 P. 703; Kohny v. Dunbar, 21 Idaho 258, 121 P. 544, Ann. Cas. 1913D, 492, 39 L. R. A., N. S., 1101; Hall v. Johns, 17 Idaho 224, 105 P. 71.)

Plaintiff is estopped from impeaching instruments, of which she was informed and under which she received benefits. 21 C. J., Estoppel, secs. 205, 213; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602; Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Boise Butcher Co. v. Anixdale, 26 Idaho 483, 144 P. 337.)

Delana & Delana and C. S. Hunter, for Respondent.

The trial court has power to determine the extent of community property in an action for divorce for the purpose of making suitable provision for the maintenance and care of the injured party and minor children, though the record title to such property stands in the name of a third person joined as a defendant. (C. S., secs. 4644-4651; I. C. A., secs. 31-706 to 31-714; Trader v. Trader, 48 Idaho 722, 285 P. 678; Murray v. Murray, 115 Cal. 266, 47 P. 37, 56 Am. St. 97, 37 L. R. A. 626.)

Disposition of community property where decree of divorce is granted on ground of extreme cruelty is in the discretion of the trial court and unless abuse of such discretion is shown the judgment will not be disturbed. (C. S., sec. 4650 (I. C. A., sec. 31-712), subd. 1; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Carter v. Carter, 39 Idaho 798, 130 P. 768; Smiley v. Smiley, 46 Idaho 588, 269 P. 589; Beckstead v. Beckstead, 50 Idaho 556, 299 P. 339.)

GIVENS, J. Budge, C. J., Holden, J., Babcock, D. J., and Rice, D. J., concur.

OPINION

GIVENS, J.

In a divorce action by Dora M. Aker, plaintiff and respondent, against Leslie J. Aker, defendant and respondent, plaintiff asked that certain designated real property be distributed to her as community property, for the support, etc., of herself and minor child.

Carrie B. Aker, Leslie J. Aker's mother, claimed the property, as having been purchased for her by her son with her funds.

Appellant appeals from a judgment rendered in favor of respondent Dora M. Aker, holding that the property in question was purchased with community funds except a 500/8550th interest decreed to appellant.

Dora M. Aker and Leslie J. Aker were married in 1915, and came to Boise from Oregon about 1924. The property in question was purchased June 27, 1924, from W. Scott Neal and his wife, the deed running to appellant.

Respondent introduced evidence to the effect that there was an understanding between the three parties herein that the deed was so taken to avoid the payment by Leslie J. Aker of a real estate commission, and that the property was to be conveyed to both respondents, and that it was understood between the three that the purchase price was made up of community funds.

Thereafter, July 2, 1924, a deed was made from appellant to respondent Leslie J. Aker, but was not recorded, and was kept by appellant in a safety deposit box in the Boise City National Bank until 1928 or 1929, when respondents' marital troubles became acute. There is a conflict in the evidence as to whether appellant had access to this box. An official of the bank testified that she did not; appellant and respondent Leslie J. Aker to the contrary. Respondent Dora M. Aker testified that she was this deed in the box once, and that later it was taken out; that she spoke to her husband about it, and he said it was in the same place; that later it was returned to the box.

At the end of the deed before the attesting clause is the following in typewriting: "This deed to take effect only upon the death of Carrie B. Aker." Respondent Dora M. Aker testified that this was not on the deed when it was executed and delivered, and she contends, and the court found, that the respondent Leslie J. Aker and appellant, fraudulently inserted this in the deed after delivery, in an attempt to defraud respondent of her rights. An expert testified that it was not written at the time the body of the deed was written and an inspection of the document would lend credence to this conclusion. The court found that the deed was delivered without any condition. Appellant attacks this finding as not supported by the evidence, and that the...