Thomas v. Hoffman

BARNARD, P. J.

This is an action to quiet title. On July 21, 1923, the plaintiff and her husband, F. A. Thomas, as vendees, entered into a contract to purchase the real property in question. On January 9, 1925, her husband assigned his interest in this contract to the plaintiff and she subsequently received a deed to the property. Some time after January 9, Í925, this defendant recovered a judgment against the husband, F. A. Thomas, and after sale of this property under execution, received a sheriff’s certificate of sale. In this action, which followed, the defendant set up his claim under the certificate of sale, pleading a fraudulent transfer from his judgment debtor to the plaintiff, and that this transfer was made while the judgment debtor was insolvent. The trial court found in all respects for the defendant, finding' that the judgment debtor was insolvent and that the transfer was fraudulent. The plaintiff has appealed from the ensuing judgment upon the following grounds: 1. That there is no evidence of insolvency on the part of her husband. 2. That there is no evidence of fraud or of an intent to defraud. 3. That the court erred in refusing to admit certain evidence. 4. That the court erred in the form of the judgment.

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The claims of insufficiency of the evidence are without merit, nothing more favorable to the appellant appearing than the usual conflict. In relation to the solvency of the judgment debtor after the transfer which is here questioned, there is evidence that all of the property he had left consisted of an account in a bank, the amount of which he did not know but which, as near as he could remember, was from $100 to $150; a Chevrolet automobile which he had purchased two years before for $700 and which he sold two years later for $50, but the value of which at the time of the transfer is in no way shown; and the sum of $500 which was owed to him by his son as the purchase price of a mortgage and a farm, if the testimony in favor of the appellant is accepted as true. However, the surrounding circumstances shown by the evidence were such that the court may well have refused to believe that this last asset existed. In any event, these assets were entirely insufficient to cover the claim of the respondent, which was over $1800.

Upon the question of fraud and fraudulent intent, there is evidence to show that on December 15, 1924, the respondent and F. A. Thomas held a conference in an attempt to settle differences that had arisen between them in a previous business deal. At this conference Thomas offered to settle for $50 and the respondent offered to settle for $100. Nothing was done and two days later, the respondent told Thomas that he would withdraw his offer to settle for $100 and would file suit for the purpose of going into the entire matter. On January 6, 1925, a letter from the respondent’s attorney was mailed to Thomas demanding an immediate adjustment of the matter. Subsequently, a suit was brought resulting in the judgment against Thomas. In the meantime, on January 9, 1925, Thomas and his wife, the appellant, went to an attorney and had papers prepared transferring practically all of the husband’s property. His interest in the real property here in question was transferred to the appellant by the assignment above referred to, the appellant testifying that she paid nothing. At the same time, Thomas transferred to the appellant the sum of $670.43 which he and the appellant had in a joint bank account, and a new account for this amount was opened in this bank in the name of the appellant alone. At the same time, a ranch which was owned by the parties and a mortgage for $3,000,