Adams v. Prather

VICTOR E. SHAW, J.,

pro

tem.

The action was brought by plaintiff as executor on behalf of creditors of Thomas Prather, deceased, to have certain conveyances of real property made by him without consideration to defendant Samuel D. Prather declared fraudulent and void. . Judgment was entered as prayed for, declaring the conveyances and transfers of the property “fraudulent and void as against the creditors of Thomas Prather, deceased,” and authorizing plaintiff, upon obtaining an order so to do from the superior court sitting in probate, to sell so much of the property as might be necessary to pay said creditors “in the same manner as if the said Thomas Prather had died seised thereof.” By the decree

“it is further ordered

that the defendant, Samuel D. Prather, deliver to said plaintiff, as such executor, for the purposes aforesaid, all of said properties, real and personal, hereinbefore set forth and described, to be sold and applied in the manner aforesaid.”

On March 20, 1916, defendant Samuel D. Prather perfected an appeal from this judgment and, desiring to stay execution thereof, presented and filed a duly executed undertaking, the sole condition of which was that during his possession of the real estate described in the decree he would protect it from waste. Thereupon the court, on June 1, 1916, made an order" that execution of the judgment from which the appeal was prosecuted be stayed pending a determination thereof.

From the order so made plaintiff has appealed, his contention being that the judgment

directs the delivery of possession of real property

as to which defendant was not, under the provisions of section 945 of the Code of Civil Procedure, entitled to a stay of execution, save and except upon filing an undertaking to the effect that he would, if thé judgment was affirmed or the appeal dismissed, pay the value of the use and occupation of the property during the possession thereof and until delivery of the same pursuant to the judgment.

The judgment from which Samuel D. Prather prosecuted his appeal was affirmed by an opinion of this court

(Adams

v.

[166]