Barrett v. Sims

Myrick, J.: The allegations of the complaint are, in substance, that on the fourteenth of January, 1879, the defendant, J. Y. Sims, executed a mortgage to the defendant Clarke, to secure the payment of eight thousand dollars, and that the mortgaged premises consist of a tract of land known as Swamp Land Survey 836; that on the sixth of May, 1880, the defendant J. Y. Sims executed to the defendant Beckman a deed of said premises, except a strip twenty-five rods wide on the west side thereof, and on the same day filed a declaration of homestead on the said twenty-five-rod strip; that said deed to Beckman, purporting to be made in consideration of eight thousand four hundred dollars, was in fact without consideration received or paid, and that the object and intent of making the conveyance and filing the declaration was to hinder, delay, and defraud the creditors of said defendant J. Y. Sims, and particularly plaintiff, and to cover up his property feo that it could not be reached; that on the twelfth of July, 1880, the defendant Sims being indebted to plaintiff on two promissory notes, in the sum of four thousand one hundred and ninety-eight dollars and fifty-nine cents, plaintiff commenced an action on said notes against said Sims in the Superior [617]Court of the City and County of San Francisco, and sued out a writ of attachment, which was levied upon the right, title, and interest of defendant Sims, in said tract of land; that such proceedings were had that on the eighteenth of September, 1880, judgment was rendered in said action in favor of plaintiff and against said defendant Sims for four thousand three hundred and thirty-seven dollars, and a transcript thereof filed in the proper office in Sacramento County (where the land is situated), September 22,1880. Plaintiff assorted that he had a lien on said land by reason of the attachment and judgment, and had a right to have a sale thereof, but was obstructed by the conveyance to Beckman, and by the fact that he did not know the amount due on the mortgage nor what part should be paid out of the homestead and what part out of the land conveyed to Beckman.

Plaintiff prayed that all the lands be declared subject to sale under Iris judgment, and that the Court cause the same to be sold; that the conveyance to Beckman be set aside; and that the amount of the claim of Clarke be determined, and 'that Clarke, in seeking satisfaction for his claim, be required to first exhaust the homestead property. The defendants, Beckman, J. V. Sims, and Mrs. J. V. Sims (his wife), demurred separately, on the grounds, that the complaint did .not state facts sufficient to constitute a cause of action, that several causes were improperly joined, specifying, and that there was a misjoinder of parties defendant, also specifying. The demurrers were overruled and the said parties answered.