Bird v. Murphy

PINCH, P. J.

— Judgment was entered herein quieting plaintiff’s title to two lots in the town of Lodi. The defendant has appealed from the judgment. A prior judgment in the action in favor of the plaintiff was reversed on the ground that the court failed to find upon the defendant’s allegation that the conveyance of the lots to plaintiff was fraudulent.

(Bird

v.

Murphy,

72 Cal. App. 39 [236 Pac. 154].) On the retrial of the case the parties stipulated .that the case be submitted upon the transcript of the evidence given at the former trial. The facts and circumstances out of which the controversy arose are stated in the opinion filed herein on the former appeal. It is there said: “These circumstances furnish at least some evidence of a fraudulent conveyance.” The evidence given to the contrary was not stated, the only question for determination being whether there was sufficient evidence of fraud to require a finding thereon.

[693]

As stated in the former opinion, the defendant, in an action for maintenance, was given judgment against her father, S. S. Murphy, July 2, 1914. Thereafter, and before the judgment was docketed, Murphy conveyed the lots in question to his wife, who, after the judgment was docketed, conveyed the lots to Bird. Murphy testified that he was a retired minister, a veteran of the Civil War, and that at the time of the conveyance of the lots to his wife he had no other property and no income except a small pension; that he did not make the conveyance to defeat the judgment for maintenance, but that he conveyed the property to his wife in consideration of advances of money which she had made to him at different times; that some of “these advances were as much as twelve hundred dollars”; that the advances were “a good deal more than those lots were worth.” A witness for defendant testified that at the time of the conveyance the lots were each worth $200 or $250. Mrs. Murphy testified that the conveyance to her was made in consideration of advances made by her of money which she had prior to her marriage to Murphy; that “what we had when we were married belonged to me, not to my husband.” Bird testified that he bought the lots from Mrs. Murphy for $500, for which he gave his promissory note; that he knew nothing about the judgment for maintenance in favor of defendant against her father at the time of the purchase, and that if he had then known “about that trouble” between them he would not have made the purchase. The court found that neither the conveyance from Murphy to his wife nor the latter’s conveyance to Bird was fraudulent. It cannot be held that the evidence does not warrant the finding. The most that can be said is that a finding either way upon the issue of fraud would be conclusive on appeal. Even if the conveyance from Murphy to his wife were held to be fraudulent, the defendant could not succeed in this action without showing that the transfer to Bird was fraudulent and that he was a party to the fraud.