Wiltbank v. Wiltbank

• Decision Date: 10 January 1917
• Docket Number: Civil 1506
• Citation: 162 P. 60,18 Ariz. 435
• Parties: CHARLES E. WILTBANK, Appellant, v. SARAH A. WILTBANK, Appellee
• Court: Arizona Supreme Court

162 P. 60

18 Ariz. 435

CHARLES E. WILTBANK, Appellant, v. SARAH A. WILTBANK, Appellee

Civil No. 1506

Supreme Court of Arizona

January 10, 1917

APPEAL from a judgment of the Superior Court of the County of Apache. John A. Ellis, Judge. Affirmed.

Mr George Estes and Mr. A. S. Gibbons, for Appellant.

Mr Isaac Barth, for Appellee.

OPINION

CUNNINGHAM, J.

This is an action to quiet title, commenced by Sarah A. Wiltbank against Charles E. Wiltbank, The property involved is situate in Eagar, Apache county, Arizona.

The plaintiff's title depends upon the following provision contained in a decree of absolute divorce rendered by the district court of the territory of Arizona on the sixth day of October, 1910, sitting in and for Apache county, to wit:

"By agreement of both of the parties hereto it is understood that the cross-complainant shall have the home and furniture therein, except the personal effects of the plaintiff, and the allowance of thirty dollars for the care, custody and maintenance of said minor children and cross-complainant is made upon said agreement."

The cross-complainant referred to in this entry is the plaintiff in this action, and she, with the defendant in this action were both parties referred to, and the minor children are two children of the plaintiff and defendant, Anna A. and Cora E. Wiltbank. The home mentioned is the property involved in this action and is described in the amended complaint. These matters are sufficiently set forth in the complaint.

The defendant answering says: ". . . That on or about the sixth day of October, A.D. 1910, the plaintiff herein and the defendant herein made and entered into an agreement whereby the defendant was to pay the plaintiff the allowance of $30 per month for the care, custody and maintenance of their said children during minority. That in said agreement it was further agreed between this plaintiff and defendant that the plaintiff herein was to have the home as a place of living and the use of the furniture therein for the sole purpose of raising said children and taking care of them during their minority."

The answer then alleges that the understanding the defendant had of the agreement and decree rendered was that said home and place was to be and remain his property, and did not divest his title. The effect of this answer is to admit the existence of the agreement reached, as evidenced by the recital in the decree, and place in issue the legal construction of the agreement so evidenced. This agreement was made in open court, and became a matter of record of that court, by having been incorporated in the decree rendered. At the time this agreement was reached, the "home" was the separate property of the defendant. The question here involved is whether the agreement reached in said court, as evidenced by the recital in the divorce decree, is competent evidence authorizing a decree establishing and quieting the plaintiff's title to the "home."

The appellant contends that the extent of the agreement was to convey to the appellee the property to be held for the use and benefit of the minor children during their minority, with the reversion to appellant. The plaintiff-appellee contends that the entire estate passed to her in fee simple, and the court so held by its decree quieting her title thereto.

The court in pronouncing the decree of divorce had no authority to compel either party to divest himself or herself of the title to separate property. Paragraph 3116, Revised Statutes of Arizona 1901, now paragraph 3862, Civil Code 1913. The decree in evidence does not purport to divest Charles E Wiltbank of the title to the property. The extent of the decree is to recite the terms of a stipulation entered into by the parties affected by the decree in open court. The stipulation declaring the conveyance was not in...