292 P. 298 | Cal. Ct. App. | 1920
This is an appeal from a judgment for the plaintiff for $1,261 and interest in an action to recover from Josephine Duffet, one of the defendants, the net amount which she had received from the sale of certain real property which had been transferred to her without consideration by her husband, at a time when it is alleged he was indebted to the plaintiff company and at a time when he was insolvent. The plaintiff also asked by the prayer of its supplemental complaint to have its judgment declared a lien upon real property owned by said Josephine Duffet because of the fact that the funds so received by her had been invested in improvements upon said real property. This order was also included in the judgment.
[1] It appears from the record that George E. F. Duffet, the husband of Josephine Duffet, together with one Le Sage had guaranteed to hold the Ohio Electric Car Company harmless from any loss or damage suffered by it by reason of the nonperformance of the terms of a certain contract by the Washington Street Electric Garage Company. This contract was for the sale and purchase of automobiles. The Washington Street Electric Garage Company was a fictitious name used by the daughter and son-in-law of George Duffet in the conduct of their business. The persons doing business under this fictitious name failed to meet their obligations under the contract with the plaintiff, and were sued, together with Duffet and Le Sage for the amount due under the contract for goods sold and delivered. Judgment was secured in this action (No. B-42522 in the superior court for the county of Los Angeles) against all of the defendants named therein, including George Duffet. The record in this action was introduced in evidence in the present action to establish the plaintiff's claim and the indebtedness of George Duffet. The appellants object to this judgment as evidence against Josephine Duffet. The argument advanced is that although the question of whether or not George Duffet was indebted to plaintiff is resadjudicata between him and the *677
plaintiff because of this judgment in case No. B-42522, nevertheless the defendant Josephine Duffet may require proof of these facts as against her and is not bound by this judgment. Upon this theory appellants seek to argue the merits of the legal questions decided by said judgment No. B-42522. We find no merit in this contention. In the present action Josephine Duffet is not sued individually; she is sought to be held as an involuntary trustee of property received from her grantor without consideration. The judgment against her goes no further than the amount of the property so received by her.[2] Where a judgment creditor attacks his debtor's conveyance as fraudulent his judgment against the debtor is prima facie
evidence of his claim as against the grantees of the debtor. (Hills v. Sherwood,
The matters heretofore discussed bring this case within the application of section 3442 of the Civil Code; the transaction was void as to existing creditors, and the plaintiff was such an one. Said code section provides that such transfers shall be void as to existing creditors. [4] It has been held (First Nat.Bank v. Maxwell,
[6] The appellants further object to the creation of this lien upon the property, because Josephine Duffet, on November 26, 1918, while this action was pending, filed a declaration of homestead upon the property sought to be charged with the lien. The answer of defendants to the supplemental complaint also set up the fact that the defendant Josephine Duffet had been adjudicated a bankrupt on January 23, 1919, and that in said bankruptcy proceedings the homestead had been set aside to her as exempt.
As we have stated, under section 3442 of the Civil Code, and under the holding in the case of First Nat. Bank v. Maxwell,supra, and numerous other California cases, the deed conveying this property to Josephine Duffet was void, as to the plaintiff. It was void ab initio, and as to plaintiff, Josephine Duffet never acquired any title to this property. By turning the same into money, and by reinvesting this money, she could not improve this condition. She could not make a void title good by changing the form of the property, and she cannot make a void title good by filing a declaration of homestead covering the property. In so far as her home represented the funds received from her husband, under the circumstances in this case, it was not a proper subject for inclusion in her declaration of homestead, and cannot be impressed with this character. In so far as this property is not her property, but is property belonging to another and impressed with a trust, it is beyond the protection of the homestead laws. It is not sufficient that if the property had remained in its original form, as a house belonging to the husband and the family had resided there, this might have been homesteaded. The fact remains that these necessary elements did not exist. This situation was considered in the case of La Point v. Blanchard,
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[7] With reference to the setting aside of the homestead in bankruptcy proceedings, this money is recovered from Josephine Duffet, not from her property, but as and from the property of her husband — property which the record shows he had before his marriage. If the deed from him to Josephine Duffet was void and title never passed, then this property could not be set apart to Josephine Duffet in bankruptcy proceedings dealing with her estate. The property is simply property outside of the scope of such proceedings. The mistake made by appellants is in basing their arguments upon the premise that this action is brought to recover as upon a debt owing from Josephine Duffet. This is merely an action to reach the property of the real debtor, George Duffet, and to brush aside the technical legal obstacles in the form of his conveyance, which interfere with the creditor's right in this regard. In Sewell v. Price,
The other matters urged by appellants we consider to be without merit.
The judgment is affirmed.
*681Nourse, J., and Brittain, 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 September 23, 1920.
All the Justices concurred.