
    [Civ. No. 3957.
    First Appellate District, Division Two.
    August 26, 1921.]
    MARIA MACCHI etc., Respondent, v. AUGUSTINO LA ROCCA, Defendant and Appellant; FRANCISCO LA ROCCA, Intervener and Appellant.
    
       Husband and Wipe — Illegal Marriage — Division op Accumulated Property.—Where a man and woman have acquired property while cohabiting as husband and wife under an illegal marriage, though strictly speaking there can be no community property, the same rule will be applied by analogy as would obtain under a valid marriage; and under such rule it is immaterial how much money the wife has actually contributed to the purchase of the property involved, because, if a legal wife, her interest in the community property would vest by reason of her services as a wife without contribution of any part of the actual purchase price of the property.
    
       Parent and Child—Earnings op Minor—Purchaser op Property by Father — Trusts. ■— The father, being entitled to the earnings of his minor son, might use them as he sees fit; and in the absence of an express agreement such minor son acquires no interest in property purchased in part with his earnings, and no trust results in his favor.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Edward P. Shortall, Judge.
    Affirmed.
    The facts are stated in the opinion of the court.
    Jos. L. Taaffe for Defendant and Appellant.
    Leon Samuels for Intervener and Appellant.
    J. H. Morris for Respondent.
   NOURSE, J.

Plaintiff commenced this action for an equal division of certain property acquired by defendant and herself during the period of an illegal marriage. Defendant answered, admitting the illegality of the marriage, the cohabitation of the parties during the period alleged, and the acquisition of the property, but denied that plaintiff contributed one-half of the purchase price thereof and alleged that plaintiff contributed but one-third of said purchase price and that the remaining two-thirds was contributed by defendant from his own earnings and from a portion of the earnings of his minor son which had been delivered to defendant during the period of cohabitation. The defendant then prayed judgment awarding plaintiff an undivided one-third interest in the property in suit and for a determination of the respective rights of himself and son in the remainder. This son filed a complaint in intervention, setting up practically the same set of facts, and prayed for an undivided one-third interest in the property. Upon plaintiff’s motion for judgment upon the pleadings, judgment was entered in favor of plaintiff, awarding her an undivided one-lialf interest in the property against both defendant and the intervenor. From this judgment the defendant and intervener appeal on the same record.

The facts admitted in the pleadings are that in November, 1906, plaintiff and defendant procured a marriage license from the county clerk in the county of Santa Clara and thereafter, without solemnization of any kind, lived together as husband and wife until about the eighth day of July, 1920, when plaintiff for the first time discovered that their cohabitation had been illegal-. During this period the parties acquired a piece of property in San Francisco, which they occupied as their home, and it is this property, together with the household furniture and personal property located therein, which is the subject matter of this litigation. During the period of cohabitation both plaintiff and defendant worked in various canneries and other establishments and contributed their earnings to the household expenses and the acquisition of this property. Plaintiff bad a minor daughter by a former marriage, while the defendant had two minor sons by a former marriage, these children living for the greater part of the period with their parents. They also worked from time to time and contributed their earnings to their parents to help meet the household expenses. It is alleged in the complaint that during this period the plaintiff earned and turned over to defendant the sum of $8,500, and that her minor daughter during the last four years of the same period earned the sum of $1,750, which was also turned over to the defendant, and that a portion of said sum so contributed to the defendant was used in the purchase of this property. On the other hand, the defendant denied that he had received these sums, but alleged that the earnings of plaintiff which were turned over to him did not exceed the sum of $2,500, and that the earnings of plaintiff’s minor daughter were received by her mother and at no time turned over to defendant. It is also alleged in the answer and in the complaint in intervention that plaintiff’s minor son during this period earned approximately $5,600, and that the greater portion thereof was used by defendant in the purchase of this property. The value of the property in suit is admitted to be $8,500, with an outstanding indebtedness of $1,350.

The only issue raised by the answer is as to the amount of actual cash contributed by plaintiff and used by defendant in the purchase of the property. The only issue raised by the complaint in intervention is one of law purely, and that is the right of a father to use the earnings of his minor son without accounting therefor to the son.

The issue of fact raised by the answer is wholly immaterial to the determination of the case. Where a man and woman have acquired property while cohabiting as husband and wife under an illegal marriage, though strictly speaking there can be no community property, the same rule will be applied by analogy as would obtain under a valid marriage. Under such rule it is immaterial how much money the wife has actually contributed to the purchase of the property involved, because, if a legal wife, her interest in the community property would vest by reason of her services as a wife and without contribution of any part of the actual purchase price of the property. Upon this point the case is controlled by Coats v. Coats, 160 Cal. 671, 675, [36 L. R. A. (N. S.) 844, 118 Pac. 441], and Schneider v. Schneider, 183 Cal. 335, [11 A. L. R. 1386, 191 Pac. 533].

As to the rights of the intervener, his earnings while a minor automatically became the earnings of his father. (Sec. 197, Civ. Code.) The father, being entitled to the earnings of his son, might use them as he saAV fit, and whether they Avere used to meet the household expenses or in the purchase of property Avas no concern of the son. In the absence' of an express agreement (and none is pleaded), the minor son acquired no interest in the property purchased in part with his earnings and no trust resulted in his favor.

Neither the answer nor the complaint in intervention raised a material issue of fact which would have required a trial, and judgment on the pleadings was, therefore, properly entered.

Judgment affirmed.

Langdon, P. J., and Sturtevant, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 21, 1921.

All the Justices concurred, except Shaw, J., who was absent.  