Kohner v. Ashenauer

California Supreme Court Jul 1, 1861Published

Before: Field

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Holding. The court held that a conveyance of property from a husband to his wife during marriage, which was not a gift or an exchange for separate property, does not prevent the husband from subsequently mortgaging the property or the mortgagee from enforcing that mortgage.

Issues

Whether a wife is a proper party defendant in a mortgage foreclosure action when she claims an interest in the mortgaged premises via a prior conveyance from her husband.
Whether a conveyance of property from a husband to his wife during marriage, absent evidence of a gift or exchange for separate property, precludes the husband from mortgaging the property.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The conveyance in question, therefore, to the wife, in no respect affected the validity of the mortgage, or the right of the mortgagee to its enforcement by a sale of the premises.”

“if such transfer can be made, it must be as a gift, he being at the time free from any debts or liabilities, or in exchange for separate property belonging to her.”

Synopsis

In suit to foreclose a mortgage executed by the husband to plaintiff, the wife may be made defendant, if she claim the premises as her separate property by virtue °f a Previous conveyance from the huband to her.

Query; Whether a complaint seeking to set aside a conveyance on an allegation that it was made voluntarily and without valuable consideration, and to hinder, delay, and defraud creditors, and particularly plaintiff, is demurrable, because of the generality of this allegation of fraud; and what degree of particularity in the statement of facts and circumstances is required when a fraudulent conveyance is alleged to have been made.

Where in suit against husband and wife to foreclose a mortgage given by the husband, and also to set aside a conveyance of the property from him to her, for fraud, the inference from the language of the complaint is, that the conveyance was made in the ordinary form of a conveyance on purchase, and during marriage; and the wife demurs on the ground that facts sufficient to constitute a cause of action against her are not set out, in this, to wit: that the facts and circumstances constituting the fraud are averred in general terms only; and that there is a misjoinder of parties in making her a defendant: Held, 1st, that if she claimed the premises as her separate property by virtue of the conveyance from her husband, that circumstance was sufficient to justify plaintiff in making her defendant; 2d, that it was immaterial whether the conveyance to the wife was made with or without a fraudulent intent; that in either case it is unavailing against the mortgage, because the inference from the language of the complaint that the conveyance was upon purchase and during marriage, and consequently, that the property was common property, is not negatived by any averment that the property was transferred to her before marriage, or was a gift to her, or in exchange for her separate property.

Barker v. Koneman (13 Cal. 10) commented on, and shown not to apply here. There the property conveyed to the trustee of the wife—and which the Court held might have been conveyed as a gift directly to her—was the separate property of the husband, who was free from debts and liabilities.

The husband, being free from debts and liabilities, may convey his separate property directly as a gift to his wife.

Query: Whether the husband can transfer common property to the wife by a direct-conveyance to her.

If the husband can transfer common property to the wife by direct conveyance to her, it must be as a gift, he being at the time free from debts or liabilities, or in exchange for her separate property.

Field, C. J. delivered the opinion of the Court Cope, J. concurring.

This is an action for the foreclosure of a mortgage of certain real property, executed by the husband to secure his promissory note to the plaintiff, and to set aside a conveyance of the premises previously executed by him to his wife. The wife interposed a demurrer to the complaint, for want of a sufficient averment of facts to constitute a cause of action against her, and for misjoinder of parties by making her a defendant. This demurrer the Court sustained, with leave to the plaintiff to amend; and on his failing to accept of the leave thus extended, judgment final was rendered in her favor. From this judgment the appeal is taken.

The complaint is sufficient to support a decree for the foreclosure of the mortgage and a sale of the mortgaged premises, as against the husband; and if the wife claimed the premises as her separate property by virtue of a previous conveyance from him, that circumstance was sufficient to justify the plaintiff in making her a defendant. He may have regarded the claim as invalid, and yet have desired a judicial determination of its invalidity so as to relieve the sale for which he prayed from any embarrassment consequent upon its assertion. The complaint alleges that the conveyance was made to hinder, delay and defraud the creditors of the husband, and particularly the plaintiff, but does not state any facts and circumstances tending to sustain the charge, and the demurrer on the first ground was directed principally to the want of such statement. We do not, however, deem it important to consider whether the allegation was demurrable for its generality, or what degree of particularity in the statement of facts and circumstances is required when a fraudulent conveyance is charged to have been made. (But see Story’s Eq. Pleads, sec. 28; and Macey v. Kinder, 7 Cal. 206.) In the view we take of this case it is of no consequence whether the conveyance was made with or without a fraudulent intent. In either view it was unavailing against the enforcement [581]of the mortgage. It is not alleged that the conveyance was made previous to the marriage, or as a gift to the wife. The inference from the language of the complaint is, that it was made in the ordinary form of a conveyance upon a purchase, and during the marriage; and this inference is not negatived by any averment that the property was transferred before marriage, or as a gift to the wife, or in exchange for her separate property. (See Meyer v. Kinzer and Wife, 12 Cal.)

Kohner v. Ashenauer

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