Windhaus v. Bootz

Garoutte, J. This is an action by a judgment creditor to have certain deeds of gift of real property, made by respondent Adam Bootz to his wife and daughters, set aside as fraudulent and void against creditors. The court made many probative findings, and also found as an ultimate fact that the transfers were not made with intent to defraud creditors, and thereupon rendered judg[620]merit for defendants. This is an appeal from that judgment, and the order denying a motion'for a new trial.

The principal error relied on by appellant is, that the evidence is insufficient to support the finding that “ the transfers were not made with intent to defraud creditors.” The respondents presented no evidence to the trial court, and that introduced by appellant is neither full nor satisfactory, and is practically as follows:—

One Severin testified that in 1879 Bootz owed him three thousand dollars upon a certain promissory note, and at the end of the year 1880 he owed about one thousand dollars upon the note; he continued: “I needed money, and asked him for it; he told me to transfer the note. I afterwards borrowed one thousand dollars from Mrs. Windhaus, the plaintiff in this action. This lady and I went out to Bootz’s Park. I asked Mr. Bootz for the money. He told me he had the money, but he wanted to make some improvements, and wanted to keep as much money back as possible. I told him to pay as much as possible. He said he could pay two hundred dollars, and with the balance he wanted to build a shed. I asked her (Mrs. Windhaus) if she was satisfied. She said: ‘ If there is no help any other way, we have to be satisfied then.’ ”

It seems the indebtedness was then transferred from Severin to Mrs. Windhaus, Bootz paying her two hundred dollars, and giving her his note for eight hundred dollars, payable in six months. This transaction occurred September 12, 1882, and it appears that during the year 1882 he and his family were conducting a saloon, restaurant, and lodging-house upon Pine Street, in the city of San Francisco, although the record is silent as to what capital was invested in that business.

The plaintiff, Charlotte Windhaus, corroborated the testimony of the previous witness as to the facts occurring at the interview at Bpotz’s Park, and further testified, that after the eight-hundred-dollar note became due she demanded its payment several times without avail. [621]