Thе plaintiff, as judgment creditor of defendant Belle F. Bell, brought this action to set aside, annul and declare void a conveyance of real property made by said defendant to her son, the co-defendant L. L. Sidwell. Judgment having been entered in favor of plaintiff, the defendants appeal therefrom.
The said real property is in Los Angeles County. The deed of conveyance, Bell to Sidwell, was executed on April 11, 1930. At that time there was pending in the superior court an actiоn of plaintiff Adams against defendant Bell, in which action, on July 21, 1930, the plaintiff obtained judgment against Mrs. Bell in the sum of $4,500. Execution was issued, whereupon defendant moved to quash that writ. From an order denying the motion to quash, the defendant appealed. On that appeal the order was reversed by judgment of this court, filed December 11, 1933.
(Adams
v.
Bell,
The complaint alleged that on April 11, 1930, during pendency of the former suit, defendant Bell had conveyed to her son, defendant Sidwell, the said real property owned by her, which conveyance was made by said grantor and acсepted by said grantee without consideration and for the purpose of defeating recovery by plaintiff on her claim. The prayer of the complaint was that the transfer be declared invalid and that the said real property be decreed subject to said $4,500 judgment.
The cause went to trial on issues joined by the аnswer of defendants. Thereafter the trial court rendered findings in favor of plaintiff to the effect that the $4,500 judgment was still due, owing and unpaid; that the property deedеd to defendant Sidwell by defendant Bell was the latter’s sole property and the only property out of which said $4,500 judgment could be satisfied; that the conveyancе was made without consideration from defendant Sidwell, with intent to defraud plaintiff as creditor, and that therefore defendant Sidwell did not become the owner of sаid property so far as plaintiff was concerned, and that plaintiff was at liberty to proceed upon the execution issued in her favor, or to issue another execution.
The first point stated by appellants presents their contention that the complaint in the instant case failed to state a cause оf action, in that it failed to allege that the conveyance to Sidwell was made by defendant Bell while insolvent or in contemplation of insolvency (sec. 3442, Oiv. Cоde). The pleading may be sustained under the provisions of sections 3439 and 3442 of the Civil Code.
(Vogel
v.
Sheridan,
4 Cal. App. (2d) 298, 305 [
Another contention of appellants is that plaintiff was not a creditor on April 11, 1930, date оf alleged fraudulent conveyance, because on said date there was no indication that the pending specific performance suit would terminate in a money judgment as rendered on July 21, 1930. While ordinarily one asserting that a conveyance is fraudulent must show that he was a creditor of the debtor at the time of transfer (H
aller
v.
Haller,
Appellants’ next point, that defendаnt Bell was not insolvent at time of the transfer, is without merit. As stated above, it is not always-necessary to show that a debtor has been stripped of all other assets in оrder to set aside a fraudulent transfer. Intent to defraud, not present insolvency, is the controlling element in these cases. Furthermore on trial
*702
of this action it was stiрulated that execution on the $4,500 judgment was returned unsatisfied. The return of an execution
nulla bona
establishes a
prima facie
case of insolvency.
(Ohio Elec. Car Co.
v.
Duffet,
Appellants next argue, under several headings, the question of sufficiency of the evidence to support the findings and judgment, particularly the finding that there was no consideration for the transfеr. The chief witnesses for plaintiff were defendants, called under section 2055 of the Code of Civil Procedure. They testified to a consideration growing out of an agreement between them whereby defendant Sidwell had improved the property in return for his mother’s promise to deed it to him. But the trial court was privileged to discredit this testimony. At most it created a conflict of evidence, and there was a sufficient showing in support of the findings and judgment. (McKinney v. Wright, supra; Fross v. Wotton, supra.) Defendant Sidwell testified as follows: “Q. Was any time sеt when she was to deed you this? A. Well, at that particular time I was having domestic trouble and so forth, and I didn’t desire to have the deed in my name. The Court: How did she happen to give it to you in April? A. We had just postponed it from time to time, and she was sued on a specific performance and got in trouble with Mrs. Adams, and when it came up she could not handle it on account of her hearing. The Court: She decided because the suit was brought against her to fulfill the promise that she made to you beforе? A. Yes. By Mr. Eddie: . . . you knew all about the suit that your mother had with Mrs. Adams? A. Yes.” After making the deed, defendant Bell continued to reside on the property with defendant Sidwell.
Lastly, appellants claim that the action was barred by section 338, subdivision 4 of the Code of Civil Procedure, which prescribes a limitation of three years for the commenсement of “ ... (4) An action for relief on-the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” In their
*703
brief the point is barely stated, without argument. Ordinarily, such cause of action would acсrue on date of judgment but it has been held that if the creditor knows nothing about the fraudulent conveyance, the cause (in the absence of laches) does not arise until he discovers the fraud by which his rights have been invaded.
(Marshall
v.
Buchanan,
The judgment is affirmed.
Shenk, J., Seawell, J., Langdon, J., Curtis, J., Thompson, J., and Waste, C. J., concurred.
Rehearing denied.