Wolbrecht v. French

JAMES, J.

Appellant is a judgment creditor of respondent W. D. French. S. Anne French is the wife of the latter. On October 5, 1908, W. D. French was indebted to appellant in a large sum of money, and on the seventh day of July, 1910, appellant brought an action to secure judgment on account of that indebtedness. Writ of attachment was issued therein and levy made upon the interest of respondent W. D. French in a certain lot of land in the county of San Diego. This action progressed to judgment, which was rendered on April 20, 1911, in appellant’s favor for the principal sum of $1482.50. Execution was issued on the judgment and, prior to the commencement of this action, was returned by the sheriff wholly unsatisfied. On August 26, 1909, respondent W. D. French had executed to his wife a grant deed purporting to convey his interest in the land upon which attachment was levied, but this conveyance was withheld from record until September 28, 1910, some months after appellant commenced her action against respondent W.

[507]

D. French, At the date of the conveyance by French to his wife he was indebted to her in the sum of three hundred dollars upon two certain promissory notes theretofore given by him, and the further sum of fifty dollars, money advanced by his wife to him at various prior times. At all times prior to the making of the conveyance by French to his wife, and at all times subsequent thereto, respondent W. D. French was wholly insolvent, and his wife at the time she accepted the conveyance from him knew of that fact and knew of the indebtedness of her husband to appellant. The instrument of conveyance was in form an absolute deed and was made pursuant to the agreement of S. Anne French that it should be in satisfaction of the antecedent indebtedness due by the husband of the sum of three hundred and fifty dollars, and dn further consideration that one hundred dollars in money should be advanced by her to him, and the further consideration that the property should be mortgaged and the sum of three hundred dollars secured by such mortgage should be delivered to respondent W. D. French for his use. The wife, at the time of the making of the deed and the agreement, had knowledge of the purpose of her husband to hinder, delay, and defraud the plaintiff from the enforcement of her demand against the land so conveyed, and with that knowledge proceeded to carry out the agreement mentioned. One James H. Parker, did make a loan of three hundred dollars upon the interest of the Frenches in the property, without knowledge, however, of any intent on the part of the mortgagors to hinder, delay, or defraud the plaintiff. After appellant obtained her judgment in the action hereinbefore referred to, and had failed to secure satisfaction thereof by execution, she brought this suit to secure a decree declaring null and void the conveyance made by French to his wife as being in fraud of her rights as a creditor. The court in the findings which were filed determined the facts to be in substance as they have been hereinbefore set forth. In the conclusions of law, however, it was determined that appellant’s lien against the property was subject to the lien of S. Anne French for the total amount of money which she had advanced to her husband before, at, and after the date of the conveyance mentioned, and subject also to the lien of the mortgage made to James H. Parker. The