Traverso v. Tate

Fox, J. This is an action to enjoin the sheriff of the city and county of San Francisco from selling the interest of one Francisco Traverso, otherwise called Frank Traverso, or Frank Travers, in a certain piece of land in said city and county, upon an execution issued out of the superior court on a judgment in favor of the defendant Tate, and against said Frank Traverso or Frank Travers.

The plaintiff, Giuseppe Traverso, claims to be the owner in fee of the entire interest in said lot of land, and that a sale on the execution against said Frank Traverso of all his interest in said land will operate as a cloud upon plaintiff's title. In his complaint plaintiff has set out a deraignment of his title from 1879 down to the time of the levy under the execution against Frank, who is his brother, and by it shows that as to an undivided half-interest therein he claims under a deed from Frank dated October 4, 1882. The answer admits the plaintiff’s deraignment of title, but as to the deed from Frank to plaintiff of October 4, 1882, under which plaintiff claims to have acquired the undivided half-interest which at that date stood in his brother Frank, it claims that the same was not made for a full or for a valuable consideration, was not bona fide, and avers that the same was made without consideration, and to hinder, delay, and defraud the said Tate, and that said Frank Traverso is still the owner of an undivided half-interest in the said tract of land.

Prior to the making of said deed, Tate, by Tyler, his guardian ad litem, had commenced an action for damages in tort against the said Frank Travers,- but judgment thereon was not recovered until May 8, 1885, two and a half years after the making of said deed. May 11, 1885, execution was issued on said judgment, under which the sheriff is threatening to sell the interest of Frank Traverso in the property, and this is the threatened sale which it is now sought to have enjoined.

[172]The findings of the court below are as follows:—

1. That the plaintiff is not the owner in fee of the entire lot of land described in the complaint, but that Frank Traverso, otherwise known as Frank Travers, owns an interest in said real estate at least equal to an undivided one half thereof.

2. That the deed of Frank Traverso to the plaintiff, of date the fourth day of October, 1882, was not bona fide, but was made with intent to hinder, delay, or defraud' the creditors of said Frank Traverso. And judgment was entered for defendants.