In re the Marriage of LUCRETIA C. and CARL S. CLEVELAND, SR. LUCRETIA C. CLEVELAND, Appellant, v. CARL S. CLEVELAND, SR., Respondent, 76 Cal. App. 3d 357

Opinion KINGSLEY, J. The wife appeals from the portions of an interlocutoiy decree of dissolution that held valid an antenuptial agreement between the parties and distributed property in accordance with that agreement. We affirm. About 15 minutes prior to their marriage, the parties executed an antenuptial agreement, drawn by an attorney for the husband. Although signed by both parties, the agreement was never acknowledged.

The effect of the agreement was to make all property then owned by either party, and all property thereafter acquired, the separate property of the party then owning or thereafter acquiring that property. The trial was bifurcated, Judge Markey holding that the agreement was valid as against both contentions. Thereafter, the issue of support was heard and decided by Judge Alexander, who entered the ultimate interlocutory decree which incorporated Judge Markey’s ruling as to validity. The support provisions are not here attacked.

On this appeal, the wife, and amicus curiae, contend that the agreement was void because not acknowledged. In addition, the wife claims that the agreement was void because obtained by fraud and undue influence. I The evidence as to the issue of fraud and undue influence was conflicting; we cannot say that Judge Markey erred in concluding that the agreement was entered into freely and voluntarily. II The principal issue before us on this appeal is a matter of law: Was the agreement, although otherwise valid, void because not acknowledged? We conclude that it was not void for that reason.

Section 5134 of the Civil Code provides as follows: “All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved.” The parties have discussed the effect on this case of the decision in Estate of Cutting (1916) 174 Cal. 104 [161 P. 1137]. However, although the opinion in that case refers, among other sections, to the predecessor

section of

section 5134, it nowhere appears from' the opinion that the instrument therein involved was not acknowledged. The sole issue discussed was whether the requirement of then

section 179 of the Civil Code (now § 5135) that the instrument be recorded prevented an unrecorded instrument from being effective between the parties. The holding was that it did not. That case, therefore, is not helpful in deciding the case at bench. We conclude that the answer to the contention made in this case lies in the fact that

section 5134 does not make “acknowledgement” the sole formal requirement. The statute requires only that the instrument be “acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved.” But proof of an instrument may be made before (inter alia) a notary public or a judge of a superior court. (Civ. Code, §§ 1180, 1181.) There is no requirement that the proof or acknowledgement be at any particular time after execution.

In the present case, both parties swore (the husband before a notary in his deposition and the wife in oral testimony) that the agreement had been executed by them.- Those oaths constituted the “acknowledgement or proof’ that the statute The judgment is affirmed. Files, P. J., concurred. At oral argument we were asked to secure and examine the appellate file in the Cutting case. We have not done so. A judicial opinion is precedent "for what it discusses and decides, not for matters neither discussed nor decided.

Thus an examination of the Supreme Court’s file would add nothing to what we can glean from the text of the opinion. (General Motors Accept. Corp. v. Kyle (I960) 54 Cal.2d 101, 114 [4 Cal.Rptr. 496, 351 P.2d 768]; 6 Witkin, Cal. Procedure (2d ed. 1971), Appeal, § 698, p. 4615.) It is to be noted that the conduct of the parties, during 14 years of marriage, was in accord with the terms of the agreement.

It has been held that even an oral prenuptial agreement is enforceable between the parties where it has been carried out and acted upon by them. (See Aguilar & Aguilar, Property A greements Between Spouses in California (1962) 2 Santa Clara Law. 53, 54; Woods v. Security-First Nat. Bank (1956) 46 Cal.2d 697, 701 [299 P.2d 657]; Estate of Piatt (1947) 81 Cal.App.2d 348 [183 P.2d 919].)