Wangenheim v. Garner

BURNETT, J.

The action was for partition of certain real property in Merced County. As to defendant Otto Olsen, the complaint alleges that he claims an interest in the property by virtue of the levy upon it of a writ of attachment issued in the ease of

Otto Olsen

v.

Josephine Parten,

pending in the superior court of Los Angeles County. In his answer Olsen alleges that subsequent to the levy of said writ he obtained judgment in said ease and thereupon a writ of execution was issued and levied upon the interest of said Josephine Parten in the property, and on the eleventh day of September, 1916, he purchased said interest at a sheriff’s sale and received the certificate of the sheriff therefor. He also filed a cross-complaint against Josephine Parten, her husband, and Augustus Knight, in which it is alleged that said' Josephine Parten was the owner of an undivided one-sixth of said land until he acquired her interest by virtue of said judgment and sale under said writ of execution. It is further averred that said Parten and Knight claimed some interest adverse to Olsen,' and the prayer is for a decree determining that their claims are subordinate to his ownership. The cross-

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complaint was served only on Knight, who answered by averring that he is the owner of said undivided one-sixth by virtue of a deed, for a valuable consideration, from said Josephine Parten, executed on January 28, 1916. The controversy in the court below, as herein, was between said Knight and Olsen, the said writ of attachment having been levied subsequent to the alleged purchase by Knight.

As to this issue the court found: “That the alleged and purported sale and conveyance by Josephine M. Parten to Augustus Knight of her interest in said real estate was not in good faith and was for a consideration much less than the value of the property and was made for the purpose of preventing the defendant and cross-complainant, Otto Olsen, from recovering the amount owed to him by the said Josephine Parten; that the said purported conveyance to the said defendant Knight is, therefore, void and of no effect, and the recorder of the county of Merced is hereby ordered to cancel, and the said conveyance is hereby cancelled upon the records of the office of the county recorder of Merced County; that the defendant, Augustus Knight, acquired no interest in the said real estate under and by virtue of said alleged and purported deed.”