Kane v. Desmond

McKee, J. The defendant seized the piano in controversy in this case from the possession of the plaintiff, by an execution, issued in favor of A. L. Day v. Thomas Kane, and sold it at execution sale as the property of Kane to satisfy the execution. Thomas Kane was the husband of the plaintiff. On the trial of the case the court found the plaintiff was, at the time of the seizure and sale, the sole and exclusive owner of the property in her own right, and entitled to its possession, and that her husband had no right or title to it. The seizure of the property was, therefore, wrongful (Wellman v. English, 38 Cal, 583; [465]Lewis v. Johns, 34 Cal. 629; Van Pelt v. Littler, 14 Cal. 194), and the plaintiff was entitled to recover.

But the finding is attacked as against the law and the evidence, in this, that the evidence showed the plaintiff’s claim of title to the property was founded on a gift from her husband, which was void as to his creditors. But it does not appear that the husband was indebted to any one at the time of the gift, except to the person from whom he had rented the piano under an agreement to purchase it on the instalment plan. Being free from debt the husband had the right to transfer his interest in the property to his wife by gift, and the wife, under the law, had the capacity to take and hold it in her own name and right. (Dow v. Gould & Curry S. M. Co. 31 Cal. 629; Woods v. Whitney, 42 Cal. 358; Higgins v. Higgins, 46 Cal.. 259; Peck v. Brummagim, 31 Cal. 440.) The gift was complete; for the evidence tended to show that immediately after the husband had rented the piano under the agreement to purchase, he delivered it to his wife as a gift, and she accepted it, and used it continuously as her separate property until the time of the seizure. Mow this transfer by gift was valid and effectual between herself and her husband and all the world, except existing creditors and bona fide subsequent purchasers without notice. There was no proof that Day—the execution creditor—was a creditor of the husband at the time of the gift, and there is no presumption that the gift was void as to him as a subsequent creditor. ( Wells v. Stout, 9 Cal. 480; Hussey v. Castle, 41 Cal. 239.)

Presumptively, therefore, the gift was valid as between the parties; and, being valid, it vested in the plaintiff, as of her own right, whatever interest her husband had in the property. It was, therefore, her separate property; and the transaction by which she acquired it cannot be attacked as fraudulent and void as to subsequent creditors, except by such a creditor or an officer representing him. Here, however, the suit is not against one who claims to be a creditor; it is against the officer who levied the execution. But an officer, who seizes the separate property of the wife by an execution against her husband, is not the representative of the execution creditor, for the purpose of attacking a legal transfer to the wife, unless he produces the judgment upon Avhich the execution was issued. It is well settled that,