Kyoko Nishi v. Downing

NOTJRSE, P. J.

—The plaintiffs are the minor children of K. Nishi, who appears herein as their guardian

ad litem,

and sue to quiet title to two parcels of real property. The defendants claim under a lien of a judgment entered against one Takeyama, the record holder of the property at the time an attachment was levied. Plaintiffs had judgment from_ which the defendant Downing appeals upon a bill of exceptions.

K. Nishi was an alien ineligible to acquire this class of property. Takeyama was an American citizen experienced in the purchase and sale of real property. K. Nishi desired to purchase the. property for the benefit of his minor children, who as minors were unable to take title in their own names, <*and Takeyama agreed to act as agent for these parties to bring about the desired result. For this purpose transfers were made in the name of Takeyama, down payments were made by K. Nishi, and two deeds of trust were executed by Takeyama to cover the balance of the purchase price. These called for instalment payments, all of which were made by K. Nishi by checks drawn by him to Takeyama, who immediately paid the same amount by his own check to the grantors. No payments were made by Takeyama at any time from his own funds and no consideration passed from

[3]

him to the grantors, except that which might have arisen from the promissory notes which he executed at the time of the purchase. Takeyama was sued on an obligation unrelated to this transaction, and a judgment was obtained against him in the sum of $2,062.75. Execution was issued, but restrained in this proceeding. Pending the trial of that action Takeyama transferred all his interest in the property to these plaintiffs. K. Nishi had paid $1800 in cash at the time of the original purchase and instalments aggregating $2,000, leaving a balance of $2,300 due. The plaintiffs had taken immediate possession at the time of the sale, and had erected improvements upon the land so that at the time of the trial the property was found to have a value of $20,000.

Though several points are advanced in the briefs, the controlling question is whether the creditors may take property standing in the name of the judgment debtor which he holds merely as trustee for another. That such property cannot be subjected to the payment of the debts of the trustee is settled by unquestioned authority. (25 Cal. Jur., p. 212;