Polk v. Boggs

HARRISON, J. The plaintiffs brought this action to restrain a sale by the sheriff of certain lands in satisfaction of a judgment against their grantor. Judgment was rendered in their favor, and the present appeal is by the defendants from an order denying their motion for a new trial, and is presented upon the ground that the evidence was insufficient to justify, certain findings of fact made by the court.

The land involved in the action consists of two parcels of about three hundred and twenty acres called the home place, and another tract of swamp land of about twenty-nine acres, all of which Thomas W. Polk, the father of the plaintiffs, conveyed to them on the 18th of June, 1891, making to each' a conveyance of an undivided one-half thereof for the expressed sum of five thousand dollars. The court found that the above conveyances by Polk were for a valuable consideration, and the appellants contend that, so far as the twenty-nine acre tract is concerned, this •finding is not sustained by the evidence. In the statement of the case upon which the motion for a new trial was heard, they ■do not specify the consideration for this parcel of land as one of the “particulars” in which the evidence was insufficient to justify the decision, but state that the evidence is insufficient to show that Polk "sold his interest in said lands to plaintiffs for a valuable consideration.” (See De Molera v. Martin, 120 Cal. 544.) It is not necessary, however, to rest our decision upon this point, ■since the record shows that the conveyances of the lands constituted a single transaction and were made upon a valuable consideration. Polk testified that he gave twelve thousand dollars "for the home place, and one hundred and fifty dollars for the swamp land. Of the purchase money for the home place six thousand dollars was paid by his wife out of her separate property, and the title to one-half thereof was held by him in trust [116]for the plaintiffs. The conveyances by him to the children of one-half of the home place were made in execution of this trust, and he sold and conveyed to them the other half of the home place and his interest in the swamp land for the sum of five thousand dollars. He says: “ I sold my property to my children. I got five thousand dollars for it. I told them if they would assume a mortgage of four thousand one hundred dollars, which was then on the property, and pay me nine hundred dollars, I would make them a deed to all of it.” It was shown by the plaintiffs that they did assume this mortgage and had paid the nine hundred dollars. One of the plaintiffs testified: “My sister and I bought the property in controversy from my father for five thousand dollars.” In the absence of any evidence to the contrary, and in weighing the circumstances attending the transactions, the court was authorized to find that the consideration for the conveyances included the swamp land as well as the home place. If the defendants would have had the court find otherwise, it was incumbent upon them, after this testimony had been given, to call the attention of the witnesses to the point, and make it clear to the court that they did not intend to include' the swamp land in their testimony concerning the consideration.