Thomas v. Lavery

JAMISON, J.,

pro tem

.

This action was brought by plaintiff to set aside a conveyance of personal and real property from defendant Jessie E. Lavery to defendant Emma Lucretia Barnett upon the ground that the said conveyance was executed in fraud of creditors. Judgment was rendered in favor of plaintiff setting aside and annulling this conveyance and from this judgment the said Emma Lucretia Barnett has appealed.

On November 25, 1925, Jessie E. Lavery executed a contract naming W. C. Barnett as trustee and giving to respondent the exclusive right to sell a tract of land known as tract 8304, contining 57 lots, respondent to receive a commission for his services in selling the said lots. Pursuant to the terms of said contract respondent proceeded with the sale of said lots until about August 1, 1927, at which date he received notice from Jessie E. Lavery canceling the said contract. In the meantime on March 26, 1926, Jessie E. Lavery had conveyed the said property, by her deed, to her daughter, Emma L. Barnett, and this deed was recorded in the early part of 1927. Thereafter, on January 28, 1928,

[668]

respondent commenced an action for damages for breach of contract against Jessie E. Lavery, Emma L. Barnett and W. C. Barnett for the breach of said contract, and judgment was rendered in his favor against Jessie E. Lavery. From this judgment the said Jessie E. Lavery appealed and it was reversed by the Supreme Court on June 23, 1932.

(Thomas

v.

Lavery,

215 Cal. 675 [12 Pac. (2d) 636].)

The rule is general that the creditor must first reduce his claim to a judgment before he is entitled to resort to an equitable action to reach property fraudulently transferred by his debtor. (12 Cal. Jur. 1033;

Moore

v.

Schneider,

196 Cal. 380 [238 Pac. 81], and