Meldrim v. Doyle

KNIGHT, J.

The defendant R. M. Doyle appeals from a judgment in an action to quiet title to real property arising out of the following facts, which are not disputed:

In March, 1928, George Hurley gave Doyle a mortgage on certain personal property to secure the payment of rent thereafter to accrue. In August, 1928, David Carr obtained possession of the mortgaged property and exchanged it with J. E. Gruben for three lots, the title to. which is the subject of this action. On September 12, 1928, Carr conveyed the lots to the plaintiff G. D. Meldrim, the deed therefor being recorded on September 26, 1928. Claiming that Carr represented to Gruben at the time of the exchange that said personal property was clear of encumbrance, Doyle, on the day following the recordation of the Meldrim deed, obtained from Gruben an assignment of any cause of action which might have accrued to Gruben out of the transaction, and brought an action thereon against Carr to recover the value of the lots and caused a writ of attachment to be issued and levied upon the same; whereupon Meldrim instituted this suit to quiet title, adding a second cause of action for damages' for an alleged malicious attachment, and making Doyle and his attorney, and the sheriff who levied the attachment, parties defendant. They filed separate answers, and Doyle added a cross-complaint whereby he brought in Carr as a cross-defendant. The substance of

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the matters pleaded by Doyle as a defense, and the cause of action attempted to be set forth in his cross-complaint were based upon allegations to the effect that Carr acquired the lots from G-ruben through fraud; that the deed from Carr to Meldrim was made by Carr with intent to defraud Gruben and other creditors, and to defraud Doyle “of his attachment lien”; that the sole consideration for said deed was the discharge by Meldrim of an antecedent debt due him from Carr, and that Meldrim acquired said lots with notice of all of the facts connected with the transaction. The relief prayed for in the cross-complaint was that Meldrim and Carr “be declared constructive trustees” of said lots; that the deed to the same be canceled, or that Meldrim and Carr be required to reconvey said lots to Doyle; that the attachment lien be declared superior to any right of Meldrim and Carr; that they be enjoined from asserting any claim to said lots, and that Doyle’s title thereto be quieted. Carr demurred to the cross-complaint and his demurrer was sustained with leave to amend, but no amended cross-complaint was ever filed. Meldrim did not demur to the cross-complaint, but filed an answer thereto denying, among other things, the allegations of fraud and admitting that the consideration for the Carr deed to him was the discharge of an antecedent debt due him from Carr.