White v. Besse

SHAW, J.

The complaint states a cause of action against the defendant, Besse, as sheriff of Santa Cruz County, to enjoin him from selling certain land, alleged to be the prop

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erty of the plaintiff, upon an execution issued on a judgment recovered by Lee, the intervener, against Edward White, the husband of the plaintiff. The judgment creditor, Lee, by leave of the court, intervened and filed his complaint in intervention. The court after a trial made its decision and gave judgment in favor of the plaintiff. The intervener alone appeals from the judgment upon the judgment-roll.

The plaintiff alleges, among other things, that she was and ever since February 28, 1898, had been, the owner of the land in question. The intervener’s judgment was recovered on September 24, 1898. The defendant, Besse, answered the plaintiff’s complaint,’ specifically denying the allegation of ownership, as well as most of the other allegations thereof. The intervener, however, did not answer the complaint, but contented himself with filing a complaint in intervention, which was answered by the plaintiff. The complaint in intervention alleged the recovery of the judgment against Edward White, set forth that prior thereto Edward White had executed two deeds purporting to convey the property to the plaintiff, dated respectively September 25, 1897, and March 1, 1898; that intervener was then a creditor of Edward White for the claim upon which judgment was afterwards recovered, and alleged that each of said deeds was without consideration, and was made by Edward White while he was insolvent and in contemplation of insolvency, and for the purpose and with the intent to defraud the intervener and other creditors of Edward White; that there was no other property out of which said judgment could be collected; that the fraudulent deeds obstructed the right of the intervener to have the same sold on execution; that said Anna R. White was not then, and never had been, the owner of, or in possession of, the property or any part thereof; that she had no right thereto, or interest therein, as against the intervener as a creditor, and that she had not, and never had or claimed to have, any interest therein save such as was conveyed to her by the said deeds of her husband. Upon these allegations he asked that the deeds mentioned be declared fraudulent and void as against him, and that they be canceled.