Updeck v. Samuel

California Court of Appeals, First District, Division Two · 1954 · Family Law

Family LawPutative MarriagePropertyContractsoral agreementreal propertystatute of fraudsputative marriage

Facts

Plaintiff claimed rights in several parcels of real property based on an alleged oral agreement and a purported marriage to defendant, though no license or valid ceremony was shown. At the time of the alleged oral agreement, both parties were married to other persons and those marriages remained in force. Defendant purchased the lots in his own name and paid the full purchase price himself. The trial court found a purported marriage and awarded plaintiff a one-half interest, but the record showed shifting dates for the alleged marriage and conflicting evidence about both the agreement and ceremony.

Issue

Whether plaintiff could claim an interest in defendant's real property based on an alleged oral agreement and purported marriage when both parties were already married to others at the time of the agreement, and the alleged agreement contemplated their living together as husband and wife.

Rule

An agreement for the transfer of an interest or estate in real property must be in writing under Civil Code sections 1091 and 1624, subdivision 4, unless a valid marriage-based exception applies. An oral contract is void ab initio when its consideration is immoral or criminal, including an agreement by parties already married to others to live together in adultery.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Fresno, Maya Ortiz and Derek Vance were each still legally married to other spouses. They orally agreed to live together as husband and wife, and Derek promised that any house he later bought would belong to them equally. Derek then bought a duplex in his own name with his own funds, and Maya sued for a one-half interest.

What is the strongest basis for rejecting Maya's claim?

Explanation. The majority applied two settled principles: an agreement transferring an interest in real property must be in writing, and an oral contract is void ab initio if founded on immoral or criminal consideration. Where both parties are married to others and the agreement calls for them to live together as husband and wife, the consideration is adulterous cohabitation, making the contract illegal as well as unwritten.