Fry v. Bihr

Opinion

DRAPER, P. J.

Plaintiff filed an action against defendant Richard Bihr for damages for personal injuries. Richard then quitclaimed to his wife, defendant Norma, all his interest in real property in Richmond owned in joint tenancy by himself and Norma. There was no consideration for this deed, and it was given and received with knowledge that it was intended to hinder, delay and defraud creditors of Richard. Trial of the

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personal injury action resulted in judgment for plaintiff against Richard for $15,000 and costs. Plaintiff then filed an action to set aside the conveyance, and shortly thereafter caused writ of execution to be issued and levied upon all right, title and interest of Richard in the Richmond property. At execution sale, plaintiff bid in the property for $150, crediting only this amount against his judgment. Some two months later, on September 25, 1967, Richard again conveyed the land to Norma, this time by grant deed. She gave no consideration for the deed, but two days later, with her own funds, she paid the marshal $150 plus interest, and received from the marshal a certificate of redemption of the property. The marshal paid the amount received from Norma to plaintiff, who retains it. Plaintiff then filed a supplemental complaint, seeking to set aside both quitclaim and grant deeds, and to quiet title to the Richmond property in himself. After trial, judgment was entered denying relief to plaintiff and quieting title in defendant Norma. Plaintiff appeals.

The court found that the Richmond property had been held by defendants Richard and Norma in joint tenancy and was not community property. No finding was made as to the grant deed of September, but the evidence is undisputed that no consideration was given or received for that deed.

The execution sale to himself terminated plaintiff’s lien upon the property. Although a balance remained due upon his judgment, he had but a certificate of sale which was not a lien during the period for redemption

(Haskins

v.

Certified Escrow & Mortg. Co.,

96 Cal.App.2d 688, 691 [216 P.2d 90]). The property sold was subject to redemption (Code Civ. Proc., § 700a) by the judgment debtor, Richard, or his successor in interest (Code Civ. Proc., § 701) upon payment of the sale price plus interest (Code Civ. Proc., § 702), but without payment of the balance of the judgment debt