Kenney v. Kenney
| Decision Date | 19 April 1950 |
| Citation | 97 Cal.App.2d 60,217 P.2d 151 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KENNEY v. KENNEY. Civ. 17383. |
Dee Holder, Los Angeles, for appellant.
Denis Evarts Bowman and Henry O. Wackerbarth, Los Angeles, Henry O. Wackerbarth, Los Angeles, for respondent.
Pursuant to its findings the court below divided equally between the parties all the community property, an undivided one-half interest to each of them. On this appeal from the judgment there are only two issues: (1) respondent having discharged a community debt due the estate of her deceased father in the sum of $6,000, the judgment awarded her a lien against th property which had been under mortgage to her father. Appellant contends that such part of the judgment is error. (2) The court found that appellant's interest in the oil drilling partnership and in the assets of same and also 125 shares of the capital stock of Union Drilling and Petroleum Company are community property. Appellant contends that this finding is not supported.
The parties were married June 4, 1923. In June, 1925, they purchased a home on Arnaz street in Los Angeles, to finance which the parties borrowed $6,000 from Mrs. Kenney's father, Mr. Albert Weible. In 1938 they purchased a new home on Hudson street and used the Arnaz property as a part of the purchase price. This transaction necessitated a transfer of Mr. Weible's lien to the Hudson street home. But instead of the customary note and mortgage, they caused a grant deed to be exeucted conveying the latter property to Mr. Weible as security for his $6,000. Six years later Mr. Weible deceased, thereafter followed by his widow. Respondent herein qualified as administratrix with will annexed of the Weible estate.
After the estate had been distributed respondent herein on January 10, 1946, petitioned the probate court for instructions alleging that the Hudson street property had stood in the name of her father although it belonged to appellant and respondent and that the title was held by Mr. Weible as 'security for a loan of $6,000 to E. B. Kenney and in the nature of a mortgage.' Appellant contends that the award of the lien to respondent was erroneous for the following reasons: (1) husband has the management and control of community property; (2) Kenney's promise to repay the $6,000 was oral and was therefore barred after two years; (3) no action can be brought upon a debt secured by mortgage except in a suit to foreclose it. Appellant is in error in making such contentions. Respondent having paid the $6,000 from her separate funds to satisfy the equitable mortgage in favor of the estate of her father she was entitled to be subrogated to all the rights of decedent's estate. Being an heir of decedent and entitled to inherit an interest in his property she had the right to redeem it from the lien at any time after the date it became due and upon having paid the sum of the indebtedness she became subrogated to all the benefits of the lien. Civil Code, sec. 2903. It is the rule that when a tenant in common redeems the common property from a mortgage foreclosure the redemption has the effect of terminating the sale and by subrogation to the lien of the mortgagee the tenant redeeming acquires an equitable lien upon the interests of his cotenants for their just proportion of the redemption money. 23 Cal.Jur., p. 926; Seale v. Balsdon, 51 Cal.App. 677, 680, 197 P. 971. In every case of subrogation there must be a debt for which a party or parties other than the subrogees are primarily liable and which in some capacity as an interested party the subrogee discharged for the protection of his own rights. 50 Am.Jur., p. 688, sec. 10. The right of subrogation extends to those who might suffer loss if the obligation is not discharged and if he has any substantial interest which will be protected by the extinguishment of the debt upon payment thereof he may hold and enforce it in like manner as the original payee. 50 Am.Jur. p. 669, sec. 23. Where a party has paid off a mortgage at the request of the mortgagor, without knowledge of a second lien on the same property, he is entitled to be subrogated to the rights of the original mortgagee and to have the original mortgage revived and foreclosed. Simon Newman Co. v. Fink, 206 Cal. 143, 146, 273 P. 565. In Boggs v. Boggs, 63 Cal.App.2d 576, 147 P.2d 116, the husband owned an apartment house at the time of his marriage to plaintiff. By his will he left plaintiff a life estate in that property. While the property was being administered, the wife paid monthly installments on a trust deed out of estate funds. After distribution she paid the accrued installments from her own funds. She was awarded a lien upon the property as security for the sums already paid and for such additional sums as she might thereafter pay on account of the subsisting lien. Also, she was granted the right of foreclosure in the event the moneys she had advanced were not repaid within a reasonable time. She was not even a comaker of the note and trust deed but was only an accommodation surety for the benefit of her husband. Proceeds of the loan were used for the reconstruction of the apartment building. She had no substantial interest in the property. It was held proper for equity to subrogate her to the rights and remedies of the encumbrancer by giving her a lien on the land for the amount of the payments she had made.
Neither the findings, conclusions nor judgment specifies from what source appellant should obtain the funds with which to discharge the $6,000 lien. Inasmuch as the debt is one of the community, the judgment should make clear that the $6,000 is to be taken from community assets, but if paid out of the separate property of appellant, his obligation should be to pay one-half of the $6,000.
With reference to appellant's contention that a wife has no power to make contracts concerning the community property, it is to be observed that no woman possession common sense and ordinary prudence should allow a debt secured by a lien against community property to become in default if she has funds with which to avoid such embarrassment. It is true that the husband has the management of community property but if he fails properly to manage it and subjects a community property to be jeopardized by not paving encumbrances against it his wife will be protected if she ventures to advance her separate funds in the discharge of such indebtedness.
With reference to the contention that no action can be brought upon a debt secured by a mortgage except by a suit to foreclose the mortgage, there is no such situation involved here. The community estate owed $6,000. This it was in honor bound to pay and the appellant should have paid it some years before respondent sought the directions of the court as to what should be done. She paid the debt with her own funds and thereby obviated the 'one form of action for the recovery of any debt * * * secured by mortgage upon real * * * property.' Code Civ.Proc. sec. 726.
The court's finding that the assets of the drilling partnership as well as the 125 shares of the capital stock of Union Drilling and Petroleum Company are community...
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