Fuller v. Kelly

California Court of Appeal Jul 28, 1915 No. Civ. No. 1611.Published

Before: Kerrigan

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Holding. The court affirmed the judgment quieting title in the plaintiff, holding that the trial court properly struck the cross-complaint, correctly denied a jury trial in an equitable action, and that the evidence supported the finding of a bona fide sale rather than a fraudulent transfer.

Issues

Did the trial court err in striking the defendants' amended cross-complaint?
Was the defendant entitled to a jury trial in this action to quiet title?
Does the evidence support the trial court's finding that the property transfer was not fraudulent?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The pleadings under which the parties went to trial were sufficient to present all the evidence that could be introduced under the cross-complaint and were sufficient to obtain all the relief that could have been given”

“This action is purely an equitable one. Neither party was entitled to a jury trial as a matter of right.”

“The mere fact that a grantor is indebted does not preclude him from conveying hds property for a valuable consideration, and where there is no intent to defraud, the conveyance cannot be set aside by creditors of the grantor.”

Synopsis

Action to Quiet Title—Pleading—Striking Out Cross-Complaint.— There is no error in striking out a cross-complaint filed for the purpose of bringing in other parties to the action, in an action to quiet title to real property and to remove a cloud from the record created by a sale of the property under an execution issued upon a judgment in an action brought by the defendant against plaintiff’s grantor, where the pleadings upon which the trial was had were sufficient to present all the evidence that could be introduced under the cross-complaint and to obtain all the relief that could have been given thereunder.

Id.—Jury Trial—When Party not Entitled to.—In such a case where plaintiff’s possession of the property in dispute was admitted by the pleadings and the denials of the answer merely went to the allegations of ownership, the suit was one of equitable cognizance whose nature cannot be changed by affirmative defenses so as to make any difference regarding the right of trial by jury, and the defendants were not entitled to a jury trial.

Id.—Sufficiency of Evidence—Absence of Fraud.—In this action it is held that the evidence was sufficient to sustain the findings against the claim of fraud in the transfer of the property in question.

Id,—Fraud—When Conveyance not Fraudulent.—The mere fact that a grantor is indebted does not preclude him from conveying his property for a valuable consideration, and where there is no intent to defraud, the conveyance cannot be set aside by creditors of the grantor.

KERRIGAN, J.

This action was brought to quiet title to> certain real estate situated in Alameda County and to remove

[161]

a cloud from the record title thereof. Judgment went in favor of plaintiff herein in accordance with the prayer of his complaint, and this appeal is from such judgment and from an order denying defendants’ motion for a new trial.

The action was against one John F. Kelly as trustee in bankruptcy of the bankrupt estate of James Treadwell and against John F. Kelly in his individual capacity. The complaint, among other things, alleged that the said Kelly, as such trustee, commenced an action against John Treadwell, a brother of the bankrupt, to recover the sum of some forty thousand dollars claimed to be due from the said John Tread-well to the said James Treadwell. The complaint further alleged that in said action the trustee caused a writ of attachment to be issued, and levy thereof made upon the real property claimed by plaintiff and described in the complaint herein. It recited the facts of the procurement of a judgment in said action by said trustee against John Treadwell, the levy of the writ of execution upon the property, and a pretended sale thereof under said writ of execution. Further allegations of the complaint set forth that at the time of the issuance of the writ of attachment, the levy of the same, the securing of the judgment, the issuing and levy of the writ of execution and the pretended sale thereunder, the property was and for a long time prior thereto had been the property of the plaintiff.

The defendants filed an answer to this complaint, to which a demurrer was interposed and sustained. At the time of filing the answer defendants filed a cross-complaint, whereby they sought to bring in as parties to the action the wife of John Treadwell and others. This cross-complaint was upon motion of the plaintiff stricken out, and subsequently the defendants filed an amended answer to the complaint, and an amended or second cross-complaint. The demurrer of the plaintiff to the answer was overruled, but the motion to strike out the second cross-complaint was granted.

The facts of the ease, as shown by the evidence, are briefly as follows: The plaintiff was an old friend of John Treadwell with whom he had formerly had large business dealings; that while on a visit to New York about January, 1909, the said Treadwell met plaintiff and informed him that he was about to lose the property in question; that there was a mortgage upon it in favor of the receiver of the California Safe Deposit

Fuller v. Kelly

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Synopsis

KERRIGAN, J.

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