Cargill v. Hancock

• Decision Date: 07 August 1968
• Docket Number: No. 10061,10061
• Citation: 444 P.2d 421,92 Idaho 460
• Parties: Vera CARGILL, Plaintiff-Respondent, v. Roy L. HANCOCK, Defendant-Respondent, and Josephine Hancock, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 421

444 P.2d 421

92 Idaho 460

Vera CARGILL, Plaintiff-Respondent, v.Roy L. HANCOCK, Defendant-Respondent andJosephine Hancock, Defendant-Appellant.

No. 10061.

Supreme Court of Idaho.

Aug. 7, 1968.

Rehearing Denied Sept. 10, 1968.

Stephen Bistline, Sandpoint, John W. Gunn, Caldwell, for appellant.

Dwaine L. Welch, Payette, for appellee.

SPEAR, Justice.

Vera Cargill, the respondent herein, brought this action to quiet title to certain real property located in Gem County, Idaho, record title to which is in her own name, claiming to have purchased the property in 1960 with her separate funds and to have maintained possession and paid the taxes thereon since that date.

The appellant, Josephine Hancock, denied that respondent was the true owner of the property in question and further alleged that this action was being brought by both respondent and Roy Hancock(hereinafter the defendant) as part of a fraudulent attempt to deprive her of her community interest in said property.Appellant contends that the Gem County property was acquired as a result of certain trades directly traceable to forer community property of the Hancocks located in Bonner County, Idaho.

The pertinent facts are as follows:

In September of 1949Roy Hancock(defendant) and Josephine Hancock(appellant) as husband and wife, entered into a contract with one George Gregory to purchase a certain piece of real property located in Bonner County, Idaho (hereinafter referred to as the 'Gregory property'); the contract provided for a $12,000 down payment and annual payments of $3,500 plus interest, payable on the 1st day of November, until the remaining balance of $28,000 had been paid on the contract.The evidence adduced at the trial in this cause conclusively established the source of the $12,000 down payment as being the sole and separate property of defendant, i. e., the proceeds from the sale of his ranch in Arizona owned prior to his marriage to appellant in 1947.In the fall of 1951appellant left the defendant and the State of Idaho and returned to her mother's home in California where she has resided ever since.In the fall of 1952defendant was in danger of the Gregory-Hancock contract being forfeited because he had been able to reduce the principal balance only by $3,000 in the three-year period the contract had been extant.The interest and principal payments made on the contract by defendant were accomplished through the sale of cattle which were on the ranch at the time it was purchased in 1949; thus no community profits or funds were used in payments made on the contract price.The defendant was additionally in default under the terms of the contract by failing to replace the cattle sold so as to keep the number of cattle in the herd above the specified minimum.Defendant advised appellant of the pending forfeiture of their contract and gave her an opportunity for her or her relatives to salvage the contract; this information was ignored by appellant who failed to answer defendant's letter.On November 7, 1952George Gregory entered into a new contract with Vera Cargill(plaintiff-respondent herein-erroneously described as a widow instead of a divorcee) for the sale of the Gregory property in consideration of a $4,000 down payment with a balance of $21,000 to be paid in annual payments of $3,500 each commencing November 1, 1953; the $4,000 paid by respondent was her sole and separate funds.In effect Gregory was selling the property to respondent for the amount of the balance due on the Hancock contract, Gregory being interested merely in receiving the contract price as originally agreed upon between himself and the Hancocks.By decree granted in the cause of Hancock v. Hancock, Bonner Countycase No. 7149, dated March 30, 1953, defendant was granted a divorce from appellant.Respondent and defendant were married on June 14, 1954 and have lived as husband and wife ever since.Prior to such marriage, in Bonner Countycase No. 7117(Gregory v. Hancocks-defendant and appellant herein), the Gregory-Hancock contract was forfeited by judgment entered in favor of Gregory on January 2, 1953.On November 17, 1954, in a straight across trade, respondent traded her interest in the Gregory property for the Oasis Ranch in Payette County, she again being erroneously described therein as a widow; this Payette County property was in turn traded for the Gem County property (the property in dispute in this quiet title action) and the assumption of an $8,600 mortgage existing on the Gen County property at the time (June 11, 1956) title thereto being taken by way of a warranty deed with defendant and respondent being named therein as the grantees and as husband and wife; and by quitclaim deed defendant transferred his interest to the property in dispute to respondent on September 19, 1960, respondent thereby becoming the sole holder of record title to the Gem County property.Appellant moved to set aside the judgment of divorce obtained against her by defendant Hancock in the divorce case No. 7149 on December 24, 1954, alleging fraud on the part of the plaintiff in that action in furnishing his attorney with the improper address of appellant in the State of California for substituted service.The order denying the motion to set aside such judgment in case No. 7149 and the order denying the petition to set aside the judgment of forfeiture of the Hancock contract by Gregory in case No. 7117 were jointly appealed to this court and reversed in Gregory v. Hancock, 81 Idaho 221, 340 P.2d 108, being cases No. 8613and8614 in the supreme court, the decision being dated May 21, 1959.The decree in Hancock v. Hancock, supra, was set aside by court order on March 22, 1961.Appellant's petition to set aside the judgment for forfeiture of the Hancock contract in Gregory v. Hancock, supra, was denied with prejudice on October 20, 1960, and notice of appeal filed therein by appellant on December 9, 1960.Such appeal must be deemed abandoned as well as appellant's action for damages for alleged fraud in the case of Hancock v. Bandelin, Cargill and Hancock, Bonner Countycase No. 7229, which was filed July 22, 1953, with orders entered therein sustaining the demurrer of Bandelin, the attorney for Gregory and Roy Hancock, on May 22, 1954, and as to Cargill and Hancock (respondent and defendant herein) on May 22, 1954-such abandonment being noted in the decision of Gregory v. Hancock, supra, by this court.

On the basis of these factsthe trial court specifically found that the Gregory property in Bonner County, which was sold to respondent in 1952, had been previously purchased by defendant Hancock and appellant while husband and wife; and that such property was purchased by the Hancocks with the sole and separate funds of defendant, Roy Hancock, and was therefore his sole and separate property and that appellant, Josephine Hancock, had no right, title, claim or interest therein.The trial court further found that although respondent and defendant have lived together, farmed together and paid joint income taxes and held joint bank accounts, that none of defendant's earnings were used in acquisition of the Gem County real property because such property was acquired by respondent through a straight across trade of other separate property acquired by her while she was a widow (in fact, a divorcee, after the Hancock decree of divorce had been set aside in 1961).The trial court then concluded that respondent was entitled to a decree quieting her title to the lands involved against defendantRoy Hancock and appellantJosephine Hancock and any and all persons claiming any part thereof through either of said persons.

This court is of the opinion this conclusion is correct and the judgment

entered thereupon should be affirmed.Issue: Status of the Original Gregory Property as Separate or Community Property-Source Doctrine

It is undisputed that the source of the funds comprising the $12,000 down payment on the original Gregory-Hancock contract (1949) came from the defendant's sole and separate property-the proceeds from the sale of his ranch in Arizona owned prior to his marriage to appellant in 1947.

While this court recognizes the presumption that all property acquired by spouses during coverture is community property, that presumption is rebuttable 'when the source of the property can be established with reasonable certainty and particularity as the separate property of one or the other (spouses) * * * and the property so traced retains its character as separate property.'Stahl v. Stahl, 91 Idaho 794 at p. 797(and numerous cases cited therein for that proposition), 430 P.2d 685, 688(1967).

At the outset, this court is confronted with the findings of fact of the trial court, and with the general rule that a finding of a trial court that property is either separate or community, when supported by competent evidence, is binding and conclusive upon the appellate court.If it is based upon conflicting evidence or upon evidence which is subject to different inferences, we will not disturb such a finding on appeal.Fisher v. Fisher, 86 Idaho 131, 383 P.2d 840(1963);Rose v. Rose, 82 Idaho 395, 353 P.2d 1089(1960).A fortiori where that finding is based upon evidence which is neither conflicting nor controverted at trial, it must be upheld.The trial court here found that the Gregory property was initially purchased with the sole and separate funds of defendantRoy Hancock and was therefore his sole and separate property, appellantJosephine Hancock acquiring no right, title or community interest therein.Additionally, the court found that none of defendant Hancock's earnings while he was farming with respondent Cargill were ever used in the acquiisition of the Gem County property, that property being acquired by respondent through straight across trades of her separate property.

I.C. § 32-903 provides in pertinent part that:

'All property of either...