Brandon v. Faria

THE COURT.

An appeal from an order confirming a report of appraisers appointed in a proceeding on execution against certain property selected by appellant, Adeline Faria, as a homestead.

The declaration of homestead was recorded on October 25, 1922. The family of the claimant consisted of her husband, Frank F. Faria, and two minor children, the issue of the marriage. On April 4, 1924, Frank F. Faria by deed of gift conveyed the property to appellant, who, on October 27, 1926, by a similar deed conveyed the same to the two

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minor children mentioned, reserving to herself a life estate therein. On July 26, 1926, in an action brought by appellant against her husband for divorce on the ground of extreme cruelty an interlocutory decree was entered, awarding her the custody of the minor children and requiring her husband to pay a sum monthly for her support and the support of 'the minors, but making no assignment or other disposition of the homestead. On February 17, 1927, an action, numbered 93935, was brought in the Superior Court of Alameda county by respondent Brandon against appellant, her two minor children and her husband, Frank F. Faria, alleging that on February 5, 1927, a money judgment for $432.76 was entered against the latter in favor of respondent, who was an assignee, and that an execution issued thereon had been returned wholly unsatisfied. The complaint further alleged that the above deed of gift was without consideration and made with the intent and purpose to hinder, delay and defraud creditors of Faria, including the assignors of respondent, and prayed judgment that as to respondent the deed be declared void. Frank F. Faria defaulted, and appellant, with the minor children, who appeared by a guardian

ad litem,

answered, denying the alleged insolvency of Faria and the fraudulent purpose of the deed.

The.court found in accordance with the ¿¿legations of the complaint, and on June 13, 1927, entered judgment against appellant for the amount of the money judgment referred to' in the complaint, which amount she had previously deposited in court, and the judgment so last entered was satisfied on June 23, 1927.

According to the petition in the present proceeding—which was filed on June 29, 1927, and the allegations of which are not denied—a judgment was entered against Faria and in favor of the respondent on the same day in an action in the Superior Court of Alameda County, which was numbered 96338. This judgment, the evidence shows, was for $2,829.53, and was entered upon a claim assigned to petitioner. It was further alleged that on the same day an execution was issued .thereon and levied upon the property claimed as a homestead; that no previous execution arising out of the judgment had been levied thereon, and that Faria had no other property subject to execution. It was also alleged that the property was of a value greater than $5,000. Appellant answered