Greenwalt v. Mueller

CHIPMAN, C.

—Action to have a certain conveyance of real property to defendant declared to be void, and for a decree adjudging the property to belong to the insolvent estate of defendant’s husband. The cause ivas tried by the court without a jury, and it found the following facts: That on December 6, 1893, defendant purchased with her own means lot 108 in Brook’s addition to the city of Los Angeles for the sum of five hundred dollars, “and as part of the consideration undertook and promised to pay off an encumbrance of two hundred and fifty dollars then resting on said lot”; that the deed when first drawn made her the sole grantee, but before delivery her husband requested that he be made one of the grantees, to which defendant consented “upon his promise to pay off said encumbrance of two hundred and fifty dollars, whereupon his name was inserted and the deed delivered”; that he failed to pay said mortgage, and defendant thereupon paid the same “with means furnished to the defendant by a son of defendant who gave his earnings to said defendant for the purpose of paying off said encumbrance and thereby acquire an unencumbered home”; that defendant’s husband never paid any part of the consideration for said lot; that defendant frequently requested |S> him to execute a deed to her for the reason that he had failed to keep his promise to pay off the mortgage and because he had only a nominal interest in the lot, and that on January 14, 1896, he did execute to her a deed for said lot conveying" his interest therein, “the consideration named in said deed being ten dollars and love and affection”; said deed was made

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within, one month prior to the filing of petition in insolvency by Mueller and after he had become insolvent, hut at the time of said transfer “defendant did not know or have any reasonable cause to believe that her husband was insolvent or was about to file his petition in insolvency, or that such conveyance to her was made with the view to prevent his property from coming to his assignees in insolvency,” or to in any way hinder, delay, or defraud his creditors, or to evade any of the provisions of the insolvency laws of this state. The court gave judgment for defendant, from which and from an order denying motion for new trial plaintiff appeals.

The evidence is meager. Plaintiff’s evidence consists of the deed of 1893 from defendant’s grantor and the testimony of the insolvent Mueller that he filed his petition in insolvency January 18, 1896, at which time and when he conveyed to his .wife he had no property and owed four hundred or five hundred dollars debts; that he knew when he made the deed that he could not pay these debts. This is all the evidence of plaintiff. The deed from Mueller to his wife is not given in the transcript. The evidence of defendant consists of the testimony of herself and her son, from which it appears that the findings of facts are amply supported, and unless they fail to1 sustain the conclusion of law the judgment and order must be affirmed.