Strong v. Strong , 22 Cal. 2d 540 ( 1943 )

TRAYNOR, J.

This action was brought by plaintiff Blanche Hadley Strong against defendant Muriel P. Strong to quiet title to a house and lot in the city of Oakland. The property was conveyed on December 16, 1925, by June Wadey to Lester H. Strong, at that time the husband of defendant Muriel P. Strong, and the deed was recorded on January 6, 1926. The purchase was made at least in part with community funds. In 1932 a grant deed was executed and delivered to plaintiff Blanche Hadley Strong, mother of Lester H. Strong. Both Lester H. Strong and Muriel P. Strong signed and acknowledged the deed, but only Lester H. Strong was named therein as grantor. Muriel P. Strong was induced to sign the deed by her husband’s representations that he was in financial difficulty, that the conveyance was made for the protection of their home, and that there would shortly he a reconveyance to them. The deed was recorded on April 14, 1932. On January 14,1938, Muriel P. Strong was granted a divorce and was awarded the house and lot, formerly the home of the family and subsequently the home of her two children and herself. Plaintiff appeals from the judgment in favor of the defendant.

The divorce decree could pass no interest to defendant unless the deed could not be enforced against her, so inquiry must first be directed at the effectiveness of the conveyance to plaintiff in 1932. Defendant invokes section 172a of the Civil Code, providing that the wife must join with the husband in executing any instrument by which “community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered. . . .” Defendant contends that in order to join in executing the deed, the wife must be named therein as grantor.

Two early cases, Ingoldsby v. Juan, 12 Cal. 564, and Dentzel v. Waldie, 30 Cal. 138, involved legislation providing that a conveyance of the wife’s separate property must be signed by the husband, that such a conveyance must be by joint deed, and that it must be executed by husband and wife. (Hittel General Laws of California, (1872) pp. 103, 105, 516.) This court held that the husband complied with these statutes by signing the deed, on the ground that it would be unreasonable to expect a husband who had no interest to convey to be a formal grantor. It declared that the husband was required to join merely to give or withhold his assent to the transfer, and that he gave his assent by signing the deed. The same reasoning applies to Civil Code section 172a. When that section was adopted in 1917, a wife had no legal interest in the community property (Spreckels v. Spreckels, 172 Cal. 775 [158 P. 537]; Estate of Dargie, 179 Cal. 418 [177 P. 165]; Lahaney v. Lahaney, 208 Cal. 323 [281 P. 67] ; McKay v. Lauriston, 204 Cal. 557 [269 P. 519]; Stewart v. Stewart, 199 Cal. 318 [249 P. 197]), and since she could grant no interest, the Legislature could hardly have intended her to act as grantor. The rights of the husband and wife must be measured by the statutes in effect when the property was acquired (McKay v. Lauriston, supra; Lahaney v. Lahaney, supra), and as the property in this case was acquired before the adoption in 1927 of Civil Code section 161a providing that the wife has a “present, existing, and equal” interest in community property, the wife adequately signified her consent to the transfer by the husband by signing the deed. (Riley v. Gordon, 137 Cal-App. 311 [30 P.2d 617]; see 3 Cal.Jur.TenYr.Supp. 593.) Since the provisions of section 172a were the same in 1927 as in 1917 with respect to a wife’s joining in a conveyance of community property, it is unlikely that any alteration in this meaning was intended in 1927.

Defendant relies on Cordano v. Wright, 159 Cal. 610 [115 P. 227, Ann.Cas. 1912C 1044], Roberts v. Abbott, 48 Cal. App. 779 [192 P. 345], and Childs v. Newfield, 136 Cal-App. 217 [28 P.2d 924], holding that if several persons sign a deed, some of whom are not named therein as grantors, only those so named convey their interest in the property granted. In distinguishing Ingoldsby v. Juan, and Dentzel v. Waldie, however, the court in Cordano v. Wright made it clear that those cases were correctly decided, and that a person without any legal interest in the property granted could by signing a deed comply with a statute requiring that he join in its execution. The rule in Cordano v. Wright had its origin in the fact that at common law deeds were not signed but sealed, and identification of the grantor was therefore required in the body of the deed. Even after seals were replaced by signatures and the rule became unnecessary it was still applied mechanically. (Elliot v. Sleeper, 2 N.H. 525.) Several courts, however, have refused to adhere to the rule now that it has lost its reason for being. (Sterling v. Park, 129 Ga. 309 [58 S.E. 828, 121 Am.St.Rep. 224, 12 Ann.Cas. 201, 13 L.R.A.N.S. 298]; Agar v. Streeter, 183 Mich. 600 [150 N.W. 160, Ann.Cas. 1916E 518, L.R.A. 1915D 196]; Hrousha v. Janke, 66 Wis. 252 [28 N.W. 166]; Elliot v. Sleeper, supra. See Blake v. Hedrick, 94 W.Va. 761 [120 S.E. 906]; Runyan v. Snyder, 45 Colo. 156 [100 P. 420].) Certainly it should not be applied where there is no occasion for even its mechanical application. The purpose of section 172a was to give a wife a veto power over conveyances of community property disadvantageous to her (Stewart v. Stewart, supra) and since she can exercise this power effectively by refusing to sign the deed, there is no need for more elaborate procedure.

Defendant, moreover, asserts her rights under section 172a too late. At the time the property was acquired this section provided that no action to avoid a conveyance of community real property in which the wife had not joined “shall be commenced after the expiration of one year from the filing for record of such instrument in the recorder’s office in the county in which the land is situate.” (Stats. 1917, p. 829.) The deed to plaintiff was recorded several years before the commencement of this action. It is immaterial that the wife has brought no action to avoid plaintiff’s deed but invokes section 172a as defendant in a quiet title suit, for statutes of limitation, although commonly phrased in terms restricting only the commencement of actions (Cal. Code Civ. Proc. sec. 335 et seq.), apply to causes of action raised by the defendant. (Hermosa Beach etc. Co. v. Law Credit Co., 175 Cal. 493 [166 P. 22]; Bradbury v. Higginson, 167 Cal. 553 [140 P. 254] ; Union Sugar Co. v. Hollister [Estate Co.], 3 Cal.2d 740 [47 P.2d 273]; Bliss v. Sneath, 119 Cal. 526 [51 P. 848].) “A title which will not sustain a declaration will not sustain a plea.” (Holmes, J., in Chapin v. Freeland, 142 Mass. 383 [8 N.E. 138, 56 Am.Rep. 701].) Defendant, despite her plea of ownership, seeks in fact to prevail on the basis of a cause of action to avoid plaintiff’s deed, a cause of action on which the statute has run.

Defendant’s argument that the statute should not bar this cause necessitates the assumption that 172a should be construed more strictly than the usual statute of limitations. The reverse is true. The recipient of a deed executed by the husband alone obtains a voidable interest. The object of the one year limitation in section 172a is to make that interest absolute after that time just as statutes barring actions for the recovery of real property are usually construed to create a new title in the adverse possessor and to terminate the interest of the paper titleholder. (See Ballantine, Title by Adverse Possession, 32 Harv.L.Rev. 135; Tiffany on Real Property (3rd ed.) section 1133, et seq.; Restatement: Property, Introductory Note to chapter 15.) It is not reasonable to suppose that the Legislature intended to make the grantee’s right to the property dependent on the chance of the wife’s appearing as plaintiff rather than defendant.

It is also contended that plaintiff waived the limitation under 172a on defendant’s cause of action. It is true that a party relying on the defense of the statute of limitations must plead it. (See Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740 [47 P.2d 273].) Plaintiff, however, pleaded that she owned the property, and a plea of ownership is sufficient to permit proof of a title acquired as a result of the running of the statute of limitations. (Jordan v. Beale, 172 Cal. 226 [155 P. 990]; Carbarino v. Noce, 181 Cal. 125 [183 P. 532, 6 A.L.R. 1433]; Myers v. Berven, 166 Cal. 484 [137 P. 260]; Gray v. Walker, 157 Cal. 381 [108 P. 278]; Montecito Valley Co. v. Santa Barbara, 144 Cal. 578 [77 P. 1113] ; Merrill v. Hooper, 125 Cal.App. 80 [13 P.2d 786]; Rowe v. Wurster, 50 Cal.App. 196 [194 P. 725].)

Defendant contends that the judgment quieting title in her should be affirmed on the ground that she was induced by her husband’s false representations to sign the deed. Defendant did not plead fraud, however, although the general rule that fraud must be specifically pleaded (see cases cited in 12 Cal.Jur. 800, et seq.) applies particularly to quiet title actions. (Thompson v. Moore, 8 Cal.2d 367, 372 [65 P.2d 800, 109 A.L.R. 1027]; Maison v. Puntenney, 212 Cal. 134, 137-139 [298 P. 33] ; Carpenter v. Smallpage, 220 Cal. 129, 133 [29 P.2d 841, 30 P.2d 995]; Burris v. Adams, 96 Cal. 664, 667-668 [31 P. 565]; Davies v. Symmes, 49 Cal.App.2d 433, 445-446 [122 P.2d 102].) Defendant, moreover, is not the legal owner, for title passed on execution of the deed. (See cases cited in 12 Cal.Jur. 723.) Any rights that she might have to the cancellation of the deed or to the declaration of a constructive trust are entirely equitable (Rocha v. Rocha, 197 Cal. 396 [240 P. 1010]; Farrar v. Steenbergh, 173 Cal. 94 [159 P. 707] ; Freligh v. McGrew, 95 Cal.App. 251 [272 P. 791]; Walsh, Equity, 492), and it is settled that such rights cannot be established in an action to quiet title when the pleadings contain merely general allegations asserting defendant’s ownership and denying that of plaintiff. (Aalwyn’s Law Institute v. Martin, 173 Cal. 21, 26 [159 P. 158] ; Robinson v. Muir, 151 Cal. 118, 124 [90 P. 521]; County of Los Angeles v. Hannon, 159 Cal. 37, 48 [112 P. 878, Ann. Cas. 1912 B 1065] ; Reilly v. Wright, 117 Cal. 77, 80 [48 P. 970].)

In the present case there was not only no pleading, but no finding of fraud, and a judgment is not supported by proof of fraud if there is no finding of fraud. (Taylor v. Taylor, 192 Cal. 71 [218 P. 756, 51 A.L.R. 1074]; Floyd v. Tierra Grande Dev. Co., 51 Cal.App. 654 [197 P. 684] ; Code Civ. Proc. § 632; see cases cited in 24 Cal.Jur. 935 et seq.) Any issue of fraud in this lawsuit entered through the evidence admitted, not through the pleadings. The findings are made substantially in the language of the pleadings and do not include issues not raised by them. (Taylor v. Taylor, 192 Cal. 71, 81 [218 P. 756, 51 A.L.R. 1074].)

The rules of pleading governing cases of conveyances in fraud of creditors have no bearing on the present case, which does not involve such a conveyance. (Cf. Howe v. Johnson, 107 Cal. 67 [40 P. 42]; Banning v. Marleau, 121 Cal. 240 [53 P. 692]; Mason v. Vestal, 88 Cal. 396 [26 P. 213, 22 Am.St.Rep. 310]; Grum v. Barney, 55 Cal. 254; Bird v. Murphy, 72 Cal.App. 39 [236 P. 154]; Sellers v. Neil, 47 Cal.App. 2d 128 [117 P.2d 390].) Such conveyances are void as against creditors, under the express terms of Civil Code section 3439, in effect when the Uniform Fraudulent Conveyance Act was adopted in 1939, and of Civil Code section 3439.09, in effect thereafter. A creditor may levy execution on the property as if there had been no conveyance. (Grum v. Barney, supra; Mason v. Vestal, supra; see Bird v. Murphy, supra), and a sheriff who is sued for conversion by virtue of such an execution may prove, under a denial of the grantee’s title, that the conveyance was fraudulent. (Howe v. Johnson, supra; Banning v. Marleau, supra; Mason v. Vestal, supra; Grum v. Barney, supra.) A conveyance may be in fraud of creditors because it was a gift by an insolvent donor (Civil Code § 3439.04), or was designed to put the property beyond the reach of creditors (Civil Code § 3439.04), or, in the case of personal property, because it was not followed by immediate delivery. (Civil Code § 3440.) The fraud that entitles a party to rescind a transfer, however, is altogether different, for it is based on false representations inducing reliance, and thus involves different considerations of policy and different legal consequences.

The judgment is reversed.

Gibson, C. J., Edmonds, J. and Schauer, J., concurred.