Tolbard v. Cline

LAWLOR, J.

This action was brought to enjoin the defendants from selling certain property against which an execution had been levied. The case was tried before the court sitting witlmut a jury. Judgment was entered in favor of the defendants. The plaintiff appeals from the judgment and from the order denying his motion for a new trial.

On March 7, 1913, Mrs. Lillie Ward, one of the defendants herein, leased to Mrs. R. A. Tolbard, wife of the plaintiff; an apartment house for “five years from March 7, 1913, at three hundred dollars per month, payable in advance.” The rent for the first and last month of the term was paid on the execution of the lease.

At the time of making the lease the two pieces of property which are involved in this action stood in the name of Mrs. Tolbard. This property is situated in the city of Long Beach. “Parcel A,” also referred to as the “home place,” was deeded to Mrs. Tolbard “as her separate estate,” while the deed to “Parcel B” was silent as to whether or not it was to be her separate estate. The evidence showed without conflict that both parcels were paid for by the plaintiff out of community funds.

On May 4, 1914, Mrs. Tolbard deeded the property to Mrs. Iola Thompson, who later transferred it to the plaintiff.

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Thereafter, and for the months of August to December, 1914, inclusive, Mrs. Tolbard failed to pay the rent as provided in the lease. It appears that Mrs. Ward had had some trouble in collecting the rent for the months of April and May, 1914,' and that on May 1, 1914, she had threatened to levy against . the above-mentioned property, standing at that time in Mrs. Tolbard’s name, if the rent were not paid. The plaintiff denies, however, that the transfer of the property to Mrs. Thompson, and thence to Mm, was made for that reason.

Mrs. Ward recovered judgment against Mrs. Tolbard fqr the amount of the unpaid rent, and execution was levied on the property above described as parcels A and B. The plaintiff by this action seeks to restrain the sale of this property, alleging in his complaint that it is community property and therefore not subject to his wife’s debts.

The defendants denied that the property is community property, and alleged that it is the separate property of the wife, conveyed fraudulently to avoid payments of the rent under the lease. In an amended ansAver it was alleged further that the plaintiff, by his representations and conduct, is estopped to deny his wife’s title to the property.