Handy v. Fitschen

DORAN, J.

This is an appeal from the judgment in an action in unlawful detainer. Prior to December, 1932, Harriett Morrow leased the premises to defendant, a month to month tenancy, for $250 per month. Prior to December 20, 1932, Harriett Morrow was named as one of the defendants in an action filed in San Bernardino County, California, in which action writs of attachment were issued and delivered to the sheriff of Los Angeles County. The sheriff levied on the rentals payable by defendant to Harriett Morrow on December 20, 1932, and 'January 20, 1933, which rentals were delivered by defendant to the sheriff. In like manner the sheriff levied on the rentals due on the 20th of February, March and April, 1933, and in like manner the money was delivered by defendant to the sheriff.

It is alleged in the complaint that, “prior to the 20th day of February, 1933, said property was conveyed by grant deed by Morrow to plaintiff subject to said month to month lease to defendant; that plaintiff is now the legal owner of said property”. This allegation is denied in the answer.

The answer sets up two affirmative defenses: One, that the rentals had been delivered to the sheriff pursuant to writs of attachment and, by reason thereof, defendant had satisfied and discharged his liability for the payment thereof to plaintiff. Two, that the conveyance by Harriett Morrow

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to plaintiff was without consideration and for the purpose of defrauding creditors.

Of the two grounds for appeal presented herein, one is based on the trial court’s refusal to recognize these two special defenses as valid. The court properly sustained objections to the evidence offered in support thereof.

The only evidence adduced at the trial was the testimony of defendant, which was brief. In his testimony, called as a witness by plaintiff, appears the following: “Q. And on or about the 14th or 15th day of" February, 1933, you received a notice that the property had been transferred to Sidney Handy? A. Yes, sir. ... Q. On or about the 15th day of February, 1933, you had a conversation with Sidney Handy, the plaintiff, did you not? A. I had several conversations. Q. And at that time, isn’t it a fact that he told you that the property had been conveyed to him and you were to pay the rent to bim thereafter? A. Yes. Q. And notwithstanding that, you paid it to the sheriff ? A. I did.”