Marroquin v. Barrial

WOOD (Parker), J. This is an action to set aside an alleged fraudulent conveyance of a promissory note and a trust deed; or, in the alternative (if the conveyance cannot be set aside), for damages. Plaintiff appeals from judgment in favor of defendants.

Defendants Antonio and Eva Barrial, husband and wife, were owners of a promissory note and a third trust deed, which deed was given as security for payment of the note. On April 18, 1956, in another action wherein the present plaintiff was plaintiff and defendant Antonio Barrial was the defendant, it was stipulated that judgment should be for plaintiff for $3,558.55. Pursuant to the stipulation judgment was entered on May 2,1956.

In the present case, the complaint alleged that on April 18, 1956, the defendants Antonio Barrial and Eva Barrial, for the purpose of defrauding the plaintiff Marroquin, transferred to defendant Baiden a certain note and trust deed which were owned by defendants Barrial ■ the note was in the amount of $8,000 and was so transferred for an inadequate consideration, and as a result the defendant Antonio Barrial was rendered insolvent and unable to satisfy the said stipulated judgment; that said conveyance was executed by defendants Barrial for an inadequate consideration and with the intent to hinder, delay, and defraud the creditors of Antonio Barrial, and that defendant Baiden accepted said conveyance with knowledge of the fraudulent intent of Antonio Barrial and with intent to assist Antonio Barrial in his fraudulent [542]purpose, and to hold the note and trust deed for the benefit of Antonio Barrial.

In their answers in the present ease, the defendants Barrial denied the allegations of the complaint regarding fraud and inadequate consideration; and they alleged that the assignment was made to secure the payment of $500 in fees to defendant Raiden, and that plaintiff and her attorneys have known that that was the fact. The defendant Eva Barrial alleged that she has never had any obligation to the plaintiff.

In his answer in the present case, the defendant Raiden denied the allegations of the complaint regarding fraud; and he alleged that the third trust deed (securing note balance of $7,611.68) was assigned to him to secure payment of attorney’s fees of $500 due to him for handling the suit brought by plaintiff against Antonio Barrial for $4,800, being $3,500 cash advanced by plaintiff to Antonio, with usurious charges of $1,300; that the attorney for plaintiff knew of that assignment ; that on supplementary proceedings the defendant Antonio told said attorney for the plaintiff that the assignment was to secure only the payment of $500 in fees; that on further supplementary proceedings on July 30, 1956, the court commissioner suggested that upon completion of the payment due to defendant Raiden, the trust deed be assigned by Antonio and Eva Barrial to the plaintiff and that plaintiff collect the payments therefrom until her judgment was paid; defendant Antonio advised the commissioner that that would be satisfactory with him and he would undertake to secure the consent of his wife, Eva, to such assignment; the attorney for plaintiff said that he wanted the sheriff to sell the trust deed immediately to satisfy plaintiff’s claim; on August 8, 1956, the plaintiff filed a notice of motion for appointment of a receiver; defendant Antonio Barrial offered to stipulate that a receiver might be appointed to collect the trust deed payments and pay them to plaintiff as soon as the payments to defendant Raiden were completed; pursuant to stipulation a receiver was appointed; on August 20, 1956, the defendant Raiden, as attorney for Antonio, approved as to form, the order appointing the receiver; on August 22, 1956, a notice of garnishment was delivered by the sheriff to defendant Raiden’s office; the notice was “directed against the note”; defendant Raiden sent a letter to the sheriff stating that the note had been assigned to defendant Raiden on April 18, 1956, when $500 was due to said defendant; the defendant Raiden