Krauss v. Strop

WEST, J.

pro

tem.

This action was brought by plaintiff and respondent to quiet her title to several parcels of real estate, only one of which is involved in this appeal. Said parcel, located in University Heights in the city of San Diego, was a portion of the estate of Sophie Marie Louise Krauss, who died testate leaving her surviving her husband, Louis Lee Krauss, one of the defendants. Said defendant was appointed executor of the will of his deceased wife and was also under its terms provided with an allowance of $200 per month. Thereafter, respondent and Krauss were married. After the marriage and during the administration of the estate Krauss, as executor, gave notice of sale of the parcel of real property here under consideration. Respondent purchased said property for $2,700 and at the time she tendered her bid made the initial or down payment of $270. Thereafter the sale of said property was confirmed to her. The balance of the purchase price was paid by Krauss by means of giving to the estate a credit of $2,430 against amounts due and owing to him on account of the $200 per month allowance provided for him in the will and hereinbefore referred to. No objection was made to the sale or confirmation thereof by appellants or any other persons. Defendant and appellant Arganbright was the assignee of a claim which existed in the hands of his assignor against Krauss at the time of the sale. Subsequently, and after the assignment of said claim to him, Arganbright reduced the same to judgment, recorded an abstract thereof, and thereafter levied upon the real property by virtue of an execution issued on the judgment. The interest of Krauss therein was sold and Arganbright is the holder of a certificate of execution sale of said property. Appellant Strop, after the sale of said property to respondent, took an assignment of

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a judgment against Krauss, which judgment was based on a claim antedating the conveyance of the property from the estate to respondent. This judgment was recorded in the office of the Recorder of San Diego County. At all times since the entry of either of said judgments Krauss was insolvent.

All of the foregoing facts were found by the trial court to be true and in addition it was found that Krauss claimed to be indebted to respondent at the time of the probate sale in a sum in excess of $2,430, and that he reduced his indebtedness to her by the sum of $2,430, in consideration of the transfer. It was not, however, found by the court whether or not such claims were true. The question of consideration was important especially in its bearing on the issue of fraud. The trial court should have found on this question.