Woodward v. Bruner

[84]

HANSON, J. pro tem.

The only question brought here by the appeal is whether attorney’s fees incurred by the successful respondent in a cross-action, to quiet title to realty against a cloud created by the cross-defendant and for damages, were properly allowed to her

as damages.

The real estate involved in this action was acquired by the respondents June Bruner and her mother Edith Bruner in June, 1946, by a deed of joint tenancy. In July, 1947, the mother executed a promissory note to the plaintiff herein. In June, 1948, the mother conveyed her joint tenancy interest in the property mentioned to her daughter. Thereafter in December, 1948, the plaintiff instituted in the municipal court an action against the mother to recover judgment on the note and, on the theory the conveyance by the mother to the daughter was fraudulent as to him, the plaintiff caused an attachment to be issued and levied against the property. After the plaintiff obtained judgment in the prior action against the mother, he instituted the present action against the mother and her daughter, the respondents herein, to set aside the conveyance as being in fraud of creditors. The mother and daughter answered the complaint averring that the property had been purchased by the daughter out - of her own funds and that title had been taken in the name of the mother and daughter as joint tenants merely for the convenience of the daughter. Additionally, the daughter filed a cross-complaint to quiet the title to the property alleging therein a demand upon and a refusal by appellant to release the attachment lien and that by reason thereof she had been compelled to employ an attorney to institute an action (evidently the cross-complaint) to establish her .ownership of the property free of any cloud or lien claimed by appellant. The prayer was for judgment establishing and quieting her title and that she have and recover reasonable attorney’s fees incurred by her in vindication of her title.

The trial court found for and entered a judgment quieting title in respondent and allowing her damages representing the attorney’s fees she had incurred in the sum of $250. In support of the judgment for attorney’s fees respondent contends the attorney’s fees were damages she suffered as “the direct and proximate result” of a wrongful act, i. e., “the levy of the attachment upon her real property and the refusal of the appellant to release and discharge the same.” In an endeavor to support her contention respondent quotes the provisions of two damage sections in the Civil Code, sections