Logan v. Thorne

CURTIS, J.

Action to quiet title to real property. W. G. Logan and Elsie M. Logan were at all of the times herein mentioned husband and wife. On the twenty-seventh day of January, 1919, as such husband and wife, they entered into an agreement with Elmer and Georgia M. Smith, whereby they contracted to purchase said real property from the

[27]

Smiths. This agreement was somewhat complicated, but it is not necessary, as we view this case, to set forth the details thereof. Thereafter, and on January 23, 1922, the said W. G. Logan, by a writing signed and acknowledged by him, assigned to his wife, Elsie M. Logan, all his right, title, and interest in and to said agreement. This assignment was not signed by Mrs. Logan. It was signed and acknowledged by her husband but never recorded. The Smiths gave their written assent to this assignment from Logan to his wife, and on May 26, 1923, they conveyed by grant deed said real property to the said Elsie M. Logan as her separate property. On September 7, 1923, said deed was recorded in the office of the county recorder of the county of Los Angeles, in which county the said real property is situated. On December 31, 1925, the appellants L. C. Thorne and the Western Wholesale Drug Company, a corporation, filed an action against W. G. Logan, seeking to recover from him a money judgment, and caused a writ of attachment to be issued therein and levied upon said real property as the property of the said W. Gr. Logan. The present action was then instituted by Mrs. Logan, claiming to be the sole owner of said real property, to quiet her title against appellants, who claim under said attachment proceedings. In addition to the main question, which we will hereafter consider, the appellants at the trial of said action claimed that the conveyance to plaintiff was a fraud upon the creditors of W. G. Logan and for that reason it should be set aside. The trial court found against appellants upon this claim, and appellants now concede that as there was a conflict of evidence regarding the question of fraud the finding of the trial court thereon is conclusive upon this court, and that the question of fraud has been eliminated from this controversy.

The only question, therefore, involved on this appeal is the validity of the written assignment made by W. G. Logan to his wife, whereby he transferred or attempted to transfer to her his interest in said agreement with the Smiths. Appellants rely upon section 172a of the Civil Code as in force prior to its amendment in 1925, and the ease of