Mantz
Bank of America National Trust & Savings Ass'n v. Mantz
Opinion
Opinion
This action is by plaintiff, a judgment creditor of A. W. Gorman, against defendant, who is the divorced wife of Gorman, to impress a lien upon certain valuable residence property in Atherton, San Mateo County, upon the contention that the judgment is a community debt and the property, prior to divorce, was the community property of the spouses, which as such may be subjected to payment of the judgment. While the prayer is that all of said property be declared community property, and subjected to the lien of said judgment, the briefs all proceed upon the assumption that only a one-half interest therein is involved, being the interest derived by the wife from the husband on January 3, 1931, prior to final decree of divorce. Defendant answered, denying the claim of plaintiff, and after pleading several special defenses, prayed that her title to the whole of said property be quieted as against the claims of plaintiff. The court granted her prayer in full. Plaintiff appealed from the judgment and also appealed from an order subsequently made denying its motion to vacate the judgment and enter a different judgment.
Our conclusion is that the judgment must be affirmed as…
lead Opinion
Preston, J.
This action is by plaintiff, a judgment creditor of A. W. Gorman, against defendant, who is the divorced wife of Gorman, to impress a lien upon certain valuable residence property in Atherton, San Mateo County, upon the contention that the judgment is a community debt and the property, prior to divorce, was the community property of the spouses, which as such may be subjected to payment of the judgment. While the prayer is that all of said property be declared community property, and subjected to the lien of said judgment, the briefs all proceed upon the assumption that only a one-half interest therein is involved, being the interest derived by the wife from the husband on January 3, 1931, prior to final decree of divorce. Defendant answered, denying the claim of plaintiff, and after pleading several special defenses, prayed that her title to the whole of said property be quieted as against the claims of plaintiff. The court granted her prayer in full. Plaintiff appealed from *324 the judgment and also appealed from an order subsequently made denying its motion to vacate the judgment and enter a different judgment.
Our conclusion is that the judgment must be affirmed as to the…
dissent Opinion
Thompson, J.
I dissent. I cannot agree with the conclusion reached in this case for two reasons. First: The action being in the nature of a creditor’s bill to subject property awarded to the wife as community property prior to the time when the judgment which is the basis of the action was rendered it was incumbent upon the plaintiff to allege and prove that the obligation was incurred by the husband for the benefit of the community. (Frankel v. Boyd, 106 Cal. 608, 614 [ 39 Pac. 939 ], McKannay v. McKannay, 68 Cal. App. 701 [ 230 Pac. 214 ], and Deacon v. Deacon, 101 Cal. App. 195 [ 281 Pac. 533 ].) In other words, the former wife should not be compelled, as a matter of equity, to pay an indebtedness incurred by her former husband, if the indebtedness was not incurred for the benefit of the community. Unless this be recognized as the true' rule a wife with a righteous complaint for divorce pending will be liable for the debts created by the husband prior to the' decree, regardless of whether the effect will be to deprive her of her entire share of the community. The record in this case fails to establish that the obligation was incurred for the benefit of the community.