Oppenheim v. Goodley

FOX, J. Defendant appeals from a judgment decreeing that his homestead on certain property is set aside and declared void as to plaintiff, and that plaintiff is entitled to execute upon such property to satisfy a judgment against defendant.

The case was submitted to the trial court upon stipulation that defendant admitted ail the allegations of plaintiff’s first [326]cause of action in his first amended complaint. No other evidence was introduced by either party.

It thus appears that in July, 1948, plaintiff filed an action against defendant in the Los Angeles Municipal Court on which plaintiff recovered a judgment against defendant for $1,800 in March, 1950. In January, 1949, defendant filed a homestead on the property here involved. With full knowledge of his insolvency, he conveyed this property, in June, 1949, to his daughter-in-law, Eleanor Katz, receiving in payment therefor an unsecured promissory note. In the latter part of March, 1950, an execution was issued upon the $1,800 judgment. The execution was returned wholly unsatisfied and no part of the judgment has been paid.

In March, 1951, plaintiff brought an action in the superior court to set aside the conveyance of the property to Eleanor Katz on the ground that it was in fraud of defendant’s creditors. In due course a judgment was rendered in that action decreeing said conveyance to be void as against plaintiff and that plaintiff was entitled to proceed in the required manner to satisfy his outstanding judgment.

In September, 1953, plaintiff had another execution issued on the municipal court judgment and caused the sheriff to levy it upon the property in question. Defendant immediately notified the sheriff that there was a homestead on the property, dated January 27, 1949. The sheriff thereupon refused to sell the property until a judicial determination of the validity of the asserted homestead.

Subsequent to the declaration of the homestead, defendant altered the residence, “so that it is now a duplex type building, having two separate entrances, one to each of the two residences, and two different families reside in the said separate portions of the building.”

Finally, it is alleged that defendant’s homestead is void as against plaintiff, in that it was “abandoned and destroyed” by defendant’s conveyance of the property to Eleanor Katz.