Lamanet v. Lamanet

TYLER, P. J.

Action to recover certain personal property claimed to have been transferred contrary to the provisions of section 3440 of the Civil Code requiring an actual and continued change of possession. The appeal is presented on the judgment roll alone. From such of the facts as are reflected in the findings of the court it appears that in September, 1932, one Laurent J. Lamanet became the sole owner of an insurance brokerage establishment. During the following year he was taken ill and about to undergo a serious operation. At this time he was indebted to creditors of his business in the sum of approximately $4,200 and he was further indebted to his parents on a promissory note in the sum of $1,000. On account of his serious illness he desired to transfer his business to his brother Alfred Lamanet provided the brother would assume the said indebtedness and

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carry on the said business thereafter. Accordingly, on the 16th day of June, 1933, the brothers entered into a written agreement by the terms of which Laurent J. Lamanet transferred to his brother Alfred all his right, title and interest in the business, including all the property thereof, together with the good will, and Alfred Lamanet accepted such transfer on the conditions agreed upon. Previous to this trans'action, and in October, 1932, Mae Lamanet, the wife of Laurent, obtained a divorce from him and the decree awarded her $50 per month alimony. At the time of the transfer of his property to his brother, Laurent Lamanet had paid the awarded alimony in full and was in no manner indebted to his former wife in any sum. Some time thereafter the alimony payments fell in arrears, and on June 11, 1935, Mae Lamanet obtained a writ of execution on account of said arrears and levied upon the brokerage establishment conveyed some three years previously by her former husband as above recited. Alfred Lamanet thereupon filed a third party claim to establish his title to all the fixtures and furnishings and equipment of said establishment. After trial the court found that the property in question was the property of Alfred, and against the claim of the former wife of Laurent Lamanet. This appeal followed and as above stated is taken on the judgment roll alone.

Appellant Mae Lamanet claims that the findings of fact are insufficient to support the judgment on two grounds: 1. That the findings show affirmatively the transfer from Laurent to his brother Alfred was not accompanied by such immediate delivery and continued change of possession as to satisfy the requirements of section 3440 of the Civil Code and was therefore vulnerable against execution levy; and 2. That the findings affirmatively show that Alfred at no time was licensed to conduct an insurance brokerage business as required by the provisions of article XVI of chapter 3 of title 1 of the Political Code, particularly section 633a2 of said code.