Urick v. Guitron

BARNARD, P. J. This is an appeal by a third party claimant from a judgment in favor of an attaching creditor.

[524]The third party claimant assisted in financing a crop of onions raised by the defendants Guitron, who will be referred to as the defendants, in Riverside County, taking a crop mortgage which they later discovered was invalid. The defendants, who were partners, began to harvest the onions on May 1, 1935, and by May 10, 1935, had harvested about three-fourths of the crop, delivering the same to the third party claimant at Los Angeles or on cars at Thermal. One of the defendants went to Los Angeles and about 10 o’clock A. M. on May 11, 1935, sold the remainder of the crop to the third party claimant, delivering a bill of sale and taking a check for $6,400 as payment therefor. It was agreed that the defendants would pay the cost of harvesting the remainder of the crop, and the evidence shows that the third party claimant expected that the onions would be delivered within a few days. • While the onions previously delivered had not been fully paid for the balance due to the defendants was left for future settlement.

About 1:30 P. M. on that day the sheriff of Riverside County attached the crop of onions in an action brought by the respondents. At the time the attachment was levied a portion of the onions still on the place had been harvested and the sheriff harvested the remainder. A third party claim was filed and on the hearing to determine the title to the attached property the court found that the sale was fraudulent as against the respondents, there having been no immediate transfer of possession, and held that title to all of the onions on the place was in the defendants at the time the attachment was levied. From the judgment the third party claimant has appealed.

While the transaction in question bears some earmarks of actual fraud no such finding was made by the court and the question here presented is whether the property attached is within the provision of section 3440 of the Civil Code, voiding transfers of personal property, in so far as the creditors are concerned, where made by one having at the time of transfer the possession or control thereof and not accompanied by an immediate, actual and continued change of possession.

It is well settled that this section has no application to the transfer of a growing crop. (Bours v. Webster, 6 Cal. 660; [525]