Fulton v. Webb

PULLEN, P. J. In 1930 plaintiffs obtained a judgment of $4,000 against defendant E. Townsend Webb. This judgment remained unsatisfied until November, 1936, at which time an execution was issued, and by the sheriff levied upon the contents of a safe deposit box rented to Minona and Sally Ruth Purviance. By inadvertence the property so levied upon was released by the sheriff, and on February 10, 1937, a second execution was issued and again was levied upon the contents of the same safe deposit box. Under this levy the sheriff took possession of the property here in dispute, being three Merchants Exchange Building of Los Angeles, Inc., First Closed Mortgage Bonds, with coupons.

Thereafter appellant Sally Ruth Purviance filed a third party claim in which she asserted ownership of the bonds and claimed to have acquired title to the same in the following manner; that her mother Mary J. Purviance had during her lifetime received these bonds as collateral security for a loan of $3,000; that the mother assigned her claim to Sally Ruth Purviance and delivered to her the mortgage bonds as collateral; that the loan was never paid, and the bonds were surrendered to her in satisfaction of the claim; and therefore Sally Ruth Purviance, claiming to be the owner thereof, demanded return of the bonds from the sheriff. The sheriff thereupon demanded security of respondents as provided in section 689 of the Code of Civil Procedure. No security was deposited, but respondents filed a petition for a hearing to determine title under that section. A hearing was had, and judgment was given in favor of respondent and against the claimant Sally Ruth Purviance, the court holding the property belonged to the judgment debtor, E. Townsend Webb, free and clear of any claim of lien of the third party claimant. From that judgment this appeal was taken.

Several points are urged in opposition to the judgment. The first is that no fraud having been pleaded, the court was without authority to find that there had been a fraudulent conveyance of the bonds by the judgment debtor to the third party claimant, or to predicate a judgment thereon. Both sides seem to have understood the issues involved, and no claim was made of surprise at the trial nor was a continuance requested, nor do we find that any objection was made by appellant as to the admission of any evidence tending to establish fraud. The gist of the action was [511]the title of the third party claimant to the bonds, which included the manner in which she obtained such title.