Joy v. Helbing

KERRIGAN, J.

This action was commenced by the plaintiff as assignee of W. W. Montague & Co. to set aside a conveyance made by defendant Louis Helbing to his wife Louise. Judgment went for the defendants, and from the judgment and an order denying his motion for a new trial the plaintiff prosecutes this appeal.

May 15, 1893, Louis Helbing conveyed to his wife Louise, by two deeds of gift, certain real property in the city and county of San Francisco. One deed conveyed the property in question on B street, the other embraced property on Waller and McAllister streets improved with twenty-four flats. Both deeds were recorded December 11, 1895. At the time of making these deeds the grantor had other property worth about $1,200. . He was at that time engaged in no business and remained idle for about one year and a half, when he embarked in the plumbing business. Between September and December, 1895, and prior to the recordation of the deeds, Helbing, upon the representation that he was the owner of the property described in the deeds, obtained credit from W. W. Montague & Co. for plumbing goods to the value of approximately $1,000. After the execution of the deeds above mentioned he exercised acts of ownership over the property conveyed by them. He insured the Waller street property in his own name, and on the occasion of a fire which partially destroyed that property, he swore to a proof of loss, reciting therein that he was the owner of the property, and he receipted for the amount of the loss paid by the insurance company to the Humboldt Savings and' Loan Society in accordance with the terms of a mortgage held by it on the property. In explanation of this he said that when the fire occurred he learned that the insurance company had made an error in issuing the policy in his name, and, to use his language, “I had to keep quiet and not say anything, and I had to swear to it so as to get the

[521]

insurance and rebuild the house again.” In the month of November, 1895, Helbing tried to sell the B street property to raise money for his own use. According to the wife’s testimony, before the conveyances were made to her she requested her husband to pay all his debts, and helped him with money to do so, whereupon, at her instance, and upon a claim by her that she owned the property or had some interest therein, the deeds were made and delivered to her. Her testimony further shows that she failed to record the deeds because she did not “know that they had to be recorded until shortly before they were placed on record.” She was not shown to have had any knowledge that her husband represented this property as his own, or of the fact that he exercised acts of ownership over it.