Dot Records, Inc. v. Freeman

BISHOP, J. pro tem.

*

The plaintiff has appealed from the order, in this third party claim proceeding, which adjudicated that the Cadillac attached in the main action belonged to the third party claimants and not to the defendant. The defendant was the owner and in possession in November 1963, when she transferred title to the two claimants. Plaintiff contends that the transfer was without effect as to its attachment because it was one in semblance only, and also because it must be

con

[206]

clusively presumed fraudulent because of noncompliance with the requirements of section 3440, Civil Code.

1

We are convinced that the transfer was void because it appears that the requirements of this section had not been met, and for that reason we are reversing the order.

Evidence was taken at the trial and we, here on appeal, are not questioning that the trial court was warranted in concluding that there was consideration for the transfer of the Cadillac to the third party claimants and that it was not a make-believe deal. However, as stated in

Southern California Collection Co.

v.

Napkie

(1951) 106 Cal.App.2d 565, 570 [235 P.2d 434, 437], “The question of good faith and adequate consideration for a transfer is wholly immaterial and is no defense where the facts bring the case within section 3440 of the Civil Code and there has been no immediate and continued change of possession.”

Hepner

v.

Hepner

(1939) 32 Cal.App.2d 582, 585 [90 P.2d 321, 322] was cited in support of the passage quoted. This, like the

Naphie

case which cites it, is a case where the conclusion that the transferee should prevail was reversed because it appeared that the transfer was not followed by an immediate and continued change of possession.