196 P. 274 | Cal. Ct. App. | 1921
The two above-entitled actions were tried together. The first one is in the nature of claim and delivery to recover certain personal property. In the second, plaintiff therein, alleging that certain real estate had been fraudulently conveyed by its debtor, William Bosbyshell, to Maggie J. Bosbyshell, sought to have the transfer thereof declared fraudulent and void.
Judgment was entered for the plaintiff in the first case and for defendants in the second, from which defendants in the one and plaintiff in the other have appealed.
As we gather from the meager statements and excerpts of evidence from the typewritten transcript, as printed in the briefs, the facts material to a decision of the cases are: That Maggie J. Bosbyshell is the mother of William Bosbyshell, who, prior to February 2, 1915, had been engaged in the business of building contractor, as a result of which he was at the time indebted to the Hammond Lumber Company in the sum of $6,323.67, for which on said date he made and delivered his promissory note in evidence thereof; that at the same time he was indebted to his mother in the sum of some $19,000, as evidenced by his promissory notes theretofore delivered to her. At the time, he and his mother were joint owners of a small ranch, upon which neither resided, but through employees they conducted a dairy consisting of some fifteen or twenty head of cows, and possessed other personal property used in connection therewith, all of which they owned jointly. On March 1, 1915, William Bosbyshell, in payment of the indebtedness due to his mother, conveyed to her his one-half interest in *111 the ranch, which deed was on the same day duly filed for record, and by bill of sale transferred to her his one-half interest in the cows and personal property thereon so owned by him, in consideration of which she canceled and surrendered to him the promissory notes evidencing his indebtedness to her. The note to the Hammond Lumber Company was reduced by payments made to the extent that on August 9, 1917, there remained a balance due thereon of $3,989.35, for which, on said date, William made and delivered to the Hammond Lumber Company his note for said sum, and upon which the Hammond Lumber Company, some four years after the alleged fraudulent transfer, to wit, on February 10, 1919, brought an action and therein caused a writ of attachment to be levied upon his interest in the real estate involved herein, and also to be levied upon all the personal property which at the time was located on the ranch. This property consisted of some fifty head of Jersey cows, heifers, and yearlings, a bull, six head of horses, and other personal property, and constitutes the subject of the first entitled action herein, and of all of which, as found by the court, plaintiff was the owner.
Appellant suggests no reason and makes no argument in support of a reversal of the judgment rendered in the case ofHammond Lumber Co. v. Maggie J. Bosbyshell and WilliamBosbyshell.
As to the other case, that of Maggie J. Bosbyshell v. Cline,Sheriff, etc., et al., it conclusively appears that at the time of the alleged transfer made on March 1, 1915, by William to his mother, he was justly indebted to her in the sum of upward of $19,000. [1] Indeed, appellants do not question the good faith of the parties in this transaction; but, invoking the provisions of section
Title to the ranch was, by deed duly recorded, conveyed to the mother on March 1, 1915, of which fact the Hammond Lumber Company must be deemed to have had notice; and while it is true that, commencing in June, 1915, and for a period of nearly four years prior to the levy of the attachment, she, at a salary of $150 per month, employed her son to manage the ranch and, as her agent, to care for the dairy stock and personal property which she had, subsequent to March, 1915, purchased with her own funds and placed upon the ranch in his charge, such facts would not justify the conclusion that, as to debts contracted by *113 him prior to March 1, 1915, the property, by virtue of such employment, should be deemed subject to the payment thereof, any more than if Maggie J. Bosbyshell had bought another farm, stocked it and employed her son in charge thereof. He never was owner of the property, and had no interest therein.
[2] It was alleged and proved that on November 1, 1916, William Bosbyshell bought a herd of cows for which his mother paid a part of the purchase price in cash and he, instead of his mother so doing, executed a mortgage thereon for the balance and immediately thereafter executed a bill of sale of the property to his mother, subject to the mortgage, which mortgage she thereafter paid. Appellants insist the judgment should be reversed because the court made no finding upon the issue as to the giving of this mortgage by William. We see no reason for so doing. The act of William in executing the mortgage at most raised a presumption that merely by virtue of his executing the mortgage he was owner of the herd of cows so purchased. The testimony touching the transaction and the fact that his mother paid the entire purchase price is ample to overcome such presumption. [3] The fact that William, long after the making of the levy, to wit, on July 10, 1919, when asking for exemption from military duty, made an affidavit that his mother was dependent upon him, which affidavit, in view of the fact that she was more than seventy years of age and feeble, he might very well have made, is, if competent evidence, of no weight whatsoever touching the issue which was tried, namely, whether he or his mother owned the property. InDubois v. Spinks,
The judgment in each case is affirmed.
Conrey, P. J., and James, 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 March 21, 1921.
All the Justices concurred.