Hunter v. Schultz

• Decision Date: 08 February 1966
• Citation: 240 Cal.App.2d 24,49 Cal.Rptr. 315
• Parties: Ann HUNTER, also known as Ann Schultz, Plaintiff and Respondent, v. Hildegard J. SCHULTZ, Defendant and Appellant. Civ. 22596.
• Court: California Court of Appeals Court of Appeals

Page 315

49 Cal.Rptr. 315

240 Cal.App.2d 24

Ann HUNTER, also known as Ann Schultz, Plaintiff and Respondent, v. Hildegard J. SCHULTZ, Defendant and Appellant.

Civ. 22596.

District Court of Appeal, First District, Division 1, California.

Feb. 8, 1966.

Eugene K. Lawlor, Oakland, for appellant.

C. O. Heffernan, San Leandro, for respondent.

SULLIVAN, Presiding Justice.

This is an appeal from an interlocutory decree ¹ entered in an action to partition real property.

Plaintiff Ann Hunter, also known as Ann Schultz (Ann), and defendant Melvin Schultz (Melvin) were married in 1946 in Cleveland, Ohio. In 1947 they moved to California. In 1950 they acquired as joint tenants the subject real property consisting of a single-family residence in San Leandro. They lived together on the premises until 1951.

In August 1951 Ann and Melvin separated and Ann commenced an action for divorce in Alameda County. She then went to Cleveland but returned to California in December 1951, whereupon the parties resumed living together on the property. In February 1952 Ann discovered that on the very day she had returned to California, Melvin had obtained a decree of annulment on his cross-complaint filed in the divorce proceedings. ² The parties again separated and Ann left the San Leandro home, never occupying it thereafter. At about this time, May 1952, she made several requests of Melvin that they 'split everything fifty-fifty' but the latter would never agree. Three months after she moved out, Ann renewed this request by telephone but Melvin refused, 'got nasty and I hung up.' After her departure, she paid nothing on the mortgages taxes, insurance, repairs or improvements on the property.

Melvin continued to live on the property and maintained it by himself until November 1954 when he married defendant and appellant Hildegard Schultz (Hildegard). Thereafter, Melvin and Hildegard jointly occupied, maintained and improved ³ the property. However, difficulties arose between Melvin and Hildegard and so, with a view toward a divorce, Hildegard telephoned Ann in August or September of 1962 to discuss the possibility of the latter's initiation of partition proceedings. Although informing Hildegard that she herself could initiate the proceedings since she had a one-fourth interest in the property, Ann nevertheless agreed to initiate the action in partition giving rise to the instant appeal. ⁴

On October 13, 1962 Ann filed the instant complaint ⁵ alleging that she, Melvin and Hildegard were owners of the property as tenants in common, Ann owning an undivided one-half interest therein and Melvin and Hildegard each owning an undivided one-fourth interest; and that Melvin and Hildegard were in possession of the premises. In their answer defendants admitted ownership and possession in themselves but denied all other material allegations. In addition, they set forth separate and distinct defenses alleging in substance that Ann had abandoned the property; that defendants had made expenditures to improve the property and to preserve it from sale under deeds of trust; that Ann had been guilty of laches; and, by way of cross-complaint, that defendants were, and for a long time had been, owners and in possession, the plaintiff having no right, title or interest whatsoever.

The trial court ordered that the property be sold and that the proceeds of the sale be applied in the following order: (a) in payment of all liens and encumbrances against the property; (b) $5,242.10 plus all payments made after December 1, 1963, on the principal of the loans to defendants; (c) one-half of the balance to plaintiff and the other half to defendants. The court found and concluded that defendants did not possess the property adversely to plaintiff; that plaintiff did not abandon the property; and that plaintiff was not barred by laches. The interlocutory decree was entered accordingly. From such decree Hildegard only, and not Melvin, has taken this appeal.

Notwithstanding the court's findings and conclusions on the issues of abandonment and adverse possession, counsel for Hildegard advised us at oral argument that appellant's contentions on appeal were not directed to these points. Indeed no tenable arguments could be advanced on such bases. The rule is long and well settled that a title in fee cannot be divested by abandonment. (Ferris v. Coover (1858) 10 Cal. 589, 631; Davenport v. Turpin (1872) 43 Cal. 597 602; ⁶ Northern Assurance Co. v. Stout (1911) 16 Cal.App. 548, 557, 117 P. 617; Kern County Land Co. v. Nighbert (1925) 75 Cal.App. 103, 106; Carden v. Carden (1959) 167 Cal.App.2d 202, 209, 334 P.2d 87; 1 Cal.Jur.2d, Abandonment, p. 9; 1 Am.Jur.2d, p. 14; 1 C.J.S. Abandonment § 5, pp. 13-14; 4 Tiffany, Real Property (3rd ed.), p. 28.)

As to adverse possession, the rule is clear that one tenant in common cannot acquire the title of his cotenant by mere exclusive possession. Recently in Weller v. Chavarria (1965) 233 Cal.App.2d 234, 242-243, 43 Cal.Rptr. 364, 370, we had occasion to summarize the applicable principles thusly: 'It is settled law that the exclusive occupancy of jointly owned premises by a cotenant is deemed permissive and does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him. [Citations.]' We there quoted from Wilkerson v. Thomas (1953) 121 Cal.App.2d 479, 488, 263 P.2d 678 as follows: 'Before title may be acquired by adverse possession as between cotenants, the occupying tenant must bring home or impart notice to the tenant out of possession, by acts of ownership of the most open, notorious and unequivocal character, that he intends to oust the latter of his interest in the common property. [Citations.] Such evidence must be stronger than that which would be required to establish a title by adverse possession in a stranger. [Citations.]' The record in the instant case supports the court's finding that defendants did not bring home to Ann notice that their possession of the premises had become hostile and that they intended to oust her from any ownership.

However, Hildegard claims that Ann is barred by laches. The court found that 'neither of the defendants suffered any damage or detriment by reason of plaintiff's failure to commence this action before she did' and concluded that 'plaintiff was not guilty of laches in failing to bring this action before she did.' Appellant's contention on this point is not clear-cut when considered in the present posture of the case and the applicable rules of appellate review. The gist of her argument seems to be this: that she and Melvin would not have maintained, improved and invested their money in the property 'had they known that one-half of it belonged to the respondent'; that if Ann had pursued her rights when she married Mr. Hunter in 1952, Hildegard 'would not have suffered the injustice wrought by the decree of partition'; and that if Ann had not slept on her rights, Melvin and Hildegard 'could have protected themselves' by keeping accurate records of their expenditures in improving the property. In essence the claim appears to be made that no substantial evidence supports the trial court's finding. It is to be noted that appellant must set forth in her briefs all of the evidence on this point, and not merely her own proofs. (See Davis v. Lucas (1960) 180 Cal.App.2d 407, 409, 4 Cal.Rptr. 479.) ⁷

We said in Marshall v. Marshall (1965) 232 Cal.App.2d 232, 251-252, 42 Cal.Rptr. 686, 699: 'As the court said in Butler v. Holman (1956) 146 Cal.App.2d 22, 28, 303 P.2d 573, 577, cert. denied 353 U.S. 930, 77 S.Ct. 718, 1 L.Ed.2d 723, 'Laches is an unreasonable delay in asserting a right which causes such prejudice to an adverse party as renders the granting of relief inequitable.' The question of laches is one for the determination of the trial court in the light of the facts and circumstances of the particular case and its conclusion thereon will not be set aside by an appellate court if there is substantial support for it in the evidence. [Citations.]'

The record discloses substantial evidence supporting the above finding. Melvin, of course, knew all along that Ann had an interest in the property. Hildegard admitted under cross-examination that she learned of Ann's interest 'two or three years' after her marriage to Melvin in 1954. It is clear that defendants knew of Ann's interest when they made the improvements to the property. It is also clear that Ann did not know that the improvements were being made to the property but saw them for the first time when Hildegard invited her to the house after her first communication with and visit to Ann's house in August or September of 1962. Nor is Hildegard correct in her argument that she and Melvin heard nothing from Ann between August 1952 and the commencement of these proceedings in October 1962. Melvin testified under cross-examination that in 1957 he attempted to get a construction loan on the property but was unable to do so because Ann was one of the owners of record; that he then attempted through one Combs to get a quitclaim deed from Ann; and that she refused to sign it. He did not tell Ann he was making improvements on the property. We think that on this evidence the court was warranted in concluding that neither of the defendants suffered damage because of Ann's conduct.

Finally, Hildegard contends that the court erred in allowing reimbursement to defendants of only $5,242.10 (plus loan payments made after December 1, 1963) before dividing the proceeds of the partition sale equally between plaintiff on the one hand and defendants on the other. The above amount of $5,242.10 is the total of all payments made by defendants on the principal of the loans on the property ($3,380) plus the amount expended by them for improvements ($1,862.10). ⁸ Hildegard complains that the ordered reimbursement is too low for two reasons: (a) While ...