Opinion
Civil No. 2471.
Filed September 16, 1926.
1. VENDOR AND PURCHASER. — Tender of deed by husband and wife warranting title was sufficient offer to convey good title, although husband had deeded his share in community property to wife.
2. HUSBAND AND WIFE. — Husband may deed community or separate property to his wife.
3. PARTIES. — Complaint not disclosing that plaintiff suing on note was married, or that property for which note was given was not her separate property, was not demurrable for failure to join husband as plaintiff, under Civil Code of 1913, paragraph 403.
4. PARTIES — NONJOINDER OF HUSBAND AS PLAINTIFF, WHERE COMPLAINT WAS NOT DEMURRABLE THEREFOR, SHOULD HAVE BEEN RAISED BY PLEA IN ABATEMENT AND NOT DEMURRER (CIV. CODE 1913, PARS. 468, 469). — Fact that husband was not joined as plaintiff on complaint not disclosing that plaintiff was married or that property involved was not her separate property should have been raised by plea in abatement, not by demurrer, under Civil Code of 1913, paragraphs 468, 469.
5. VENDOR AND PURCHASER. — That purchaser lost property through neglect to pay mortgage, and permitting it to be foreclosed and not redeeming, did not prevent recovery by vendor on note given therefor.
See (1, 2) 21 C.J., p. 100, n. 95; 39 Cyc., p. 1555, n. 92 New. (3, 4) 30 C.J., p. 951, n. 72; 31 Cyc., p. 324, n. 39. (5) 39 Cyc., p. 1914, n. 41 New.
Conveyance of interest in community property by one spouse to other, see note in 37 A.L.R. 282. See, also, 5 Cal. Jur. 349; 5 R.C.L. 854.
See 13 Cal. Jur. 887; 21 Cal. Jur. 94; 13 R.C.L. 427; 25 R.C.L. 505.
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.
Mr. John W. Ray and Mr. Weldon J. Bailey, for Appellant.
Messrs. Cox Carson, for Appellee.
Ada L. Fagg brought this action to recover from J.W. Colvin on his promissory note to her dated February 5, 1921, for $2,000, bearing interest at eight per cent and due February 5, 1922.
The case was tried before the court without a jury, and plaintiff had judgment. Defendant has appealed.
The record shows that W.W. Fagg and Ada L. Fagg, husband and wife, on February 5, 1920, contracted to sell to defendant lots 11 and 12, block 2, Park Place Addition to Glendale, Maricopa county, for the sum of $5,000, and, as a part of said agreement, to let defendant into the immediate possession of premises, which was done; that thereafter and before February 5, 1921, defendant paid W.W. Fagg and Ada L. Fagg $800 on account of agreed purchase price; that on the latter date, W.W. Fagg having in the meantime deeded said premises to Ada L. Fagg, a new agreement was entered into between plaintiff and Ada L. Fagg whereby plaintiff agreed and bound herself to convey said premises to defendant by general warranty deed, in consideration of defendant's note (being the note sued on) for $2,000 and defendant's assumption and payment of two mortgages on premises — one for $700 and one for $1,500; that defendant thereafter paid off the $700 mortgage, but defaulted in the payment of the $1,500 mortgage and permitted the same to be foreclosed and the property to be sold under execution and the period of redemption to expire.
The defense against the note was that plaintiff did not have and could not convey good title, and therefore the consideration for the note had failed. Just why plaintiff's title was not a good and merchantable title is not made to appear. There is no legal inhibition in our laws against a husband deeding his community or separate property to his wife. Schofield v. Gold, 26 Ariz. 296, 37 A.L.R. 275, 225 P. 71. The change taking the husband out of the contract was with defendant's full knowledge and consent. The husband could not question the wife's right to carry out the modified contract or her conveyance of title to defendant in pursuance thereof. Anyway, a deed of conveyance signed by both W.W. Fagg and Ada L. Fagg, warranting the title to property according to the terms of the agreement, was tendered into court. Even if Ada L. Fagg's title were defective, it would be no defense to the note as long as she was able, willing and ready to convey, or cause to be conveyed, a good title to defendant.
It is objected that the husband, W.W. Fagg, should have been joined as a plaintiff. The complaint does not disclose that plaintiff was a married woman or that the property involved was not her separate property. It therefore did not show on its face incapacity in plaintiff to sue alone. Paragraph 403, Civil Code, 1913. The defendant's demurrer could not raise the point. He should have pleaded the facts in abatement. Paragraphs 468, 469, Civil Code; 30 C.J. 951, § 671; 21 R.C.L. 505, § 69.
It is obvious from the facts that, if the defendant has lost the property, it is due solely to his neglect to keep his promise and pay off and care for the $1,500 mortgage, and in permitting it to be foreclosed, the property sold, and in not thereafter redeeming. The plaintiff could in no way be blamed for this unfortunate situation.
There are some other assignments but none of merit. They are upon questions either immaterial to or outside the issues.
The judgment is affirmed.
McALISTER, C.J., and LOCKWOOD, J., concur.