Alhambra Building & Loan Ass'n v. DeCelle

HANSON, J. pro tem. This is an action in equity instituted by a judgment creditor to subject two parcels of real estate to its judgment as being the property of the judgment debtor although title thereto stood in the names of third persons. From a judgment rendered in favor of the creditor the defendants, both debtor and title holders, have appealed.

The amended complaint, which is labeled “Amended Complaint to Set Aside Fraudulent Conveyance,” alleges that Agnes J. Krupp DeCelle and her husband, Charles E. De-Celle, deceased, purchased the properties here involved and caused the grantors thereof to name as grantees certain relatives of Mrs. DeCelle, and that these relatives took the title to the properties in trust to hold the same as the separate property of Mrs. DeCelle in order to assist her in defrauding her creditors. The prayer of the complaint was that the deeds conveying the properties to the relatives be set aside and that the properties be subjected to the lien of the plaintiff’s judgment. The trial judge found that the defendant Mrs. DeCelle, from her separate funds and not those of the community, purchased and improved the two properties here in question and caused the titles thereto to be taken in the names of her relatives, to be held by them in secret trust for her and her alone, and entered judgment accordingly.

Appellants contend that the properties here involved were community property, owned by Mrs. DeCelle and her deceased husband, and hence not only was the latter’s personal representative a necessary party but such representative alone was entitled to sue to recover property fraudulently caused to have been transferred by him. The complete answer to this claim is that in the court below appellants contended that neither Mrs. DeCelle nor her husband in his lifetime, nor his estate upon his death, had any interest in the property. They may not now “mend their hold” or on appeal become self-appointed guardians of the rights of the estate of the decedent. No one with the right to represent decedent’s estate is here to urge the error, if error [412]there be. The right of appellants to claim that the personal representative of the decedent’s estate was a necessary party to a complete determination of the action could have been urged in the lower court by demurrer or answer, but the objection not having been made it was waived. (Ah Tong v. Earle Fruit Co., 112 Cal. 679 [45 Pac. 7].) Furthermore, appellants are in no manner prejudiced, and neither is any personal representative, for that matter, for the simple reason that if he had an interest it has not been effectively adjudicated against him, and could not be as he was not a party to the litigation.