DocketNumber: Sac. No. 79
Citation Numbers: 5 Cal. Unrep. 489, 46 P. 301
Judges: Searls
Filed Date: 10/6/1896
Status: Precedential
Modified Date: 1/12/2023
Action to quiet title to separate parcels of land conveyed to appellant by separate deeds. Defendant, as a defense and by way of cross-complaint, averred the tract of land involved in this appeal was conveyed to plaintiff, who is appellant, by W. B. Hayford, her husband, November 7, 1886, without other consideration than love and affection; that at said date said W. B. Hayford was insolvent, and that defendant was a creditor of said Hayford, and that she secured a judgment, under which the land was sold, and she .claims title under a sheriff’s deed, etc. Defendant also pleaded actual fraud on the part of Hayford, and knowledge thereof on the part of his wife. Defendant had a decree in her favor as to the land conveyed to plaintiff December 7, 1886. Plaintiff moved for a new trial, which was refused, and this appeal is from the order of refusal. The court found, among other things: (1) That W. B. Hayford, the husband of plaintiff, on the seventh day of December, 1886, conveyed the land in question to the plaintiff, who entered into possession, (2) That the only consideration for the conveyance was love and affection, and there was no valuable or money consideration therefor. (3) That at the time of such conveyance W. B. Hayford was insolvent, and unable to pay his debts, and
The second of the foregoing findings is assailed upon the ground that the evidence is insufficient to justify the finding “that love and affection was the only consideration for the deed, and that no valuable nor money consideration was paid therefor.” It is true, there was evidence tending to show that W. B. Hayford, who was a merchant at Colfax, and a member of the firm of Hayford, Perkins & Co., held a policy of insurance upon his life, payable, about 1883, to his then wife, or, in case of death, to said Hayford. His wife died, and he intermarried with the plaintiff and appellant in 1876. The plaintiff testified that the first year of their marriage her husband told her of the policy, and said when it was paid she should have the money, but that when it was paid he wanted to use the money, and promised to give her his note, with interest at ten per cent. This was in 1883, and on April 10, 1886, he gave her a note for $2,000, which was the consideration for the deed in question. Hayford himself testified that he assigned the policy to his wife, and that she kept it until it was due, in 1883, when she delivered it to him for collection, and that he neglected to give her a note, as he had promised, until 1886. On the other hand, there was testimony tending to show that this insurance policy was pledged to Mr. Wallace, the husband of defendant, as security for a debt due him from said Hayford, and remained in his hands until his death, and until it was due, in 1883, when it was delivered to Hayford by order of the respondent, as representative of her deceased husband, and the money collected and paid over to her in satisfaction of the debt, or a portion of it, owing by said Hayford. This involved a contradiction of the statement that the policy was delivered by Hayford to his wife, and retained by her. The court evidently believed the statement of Mrs. Emeline Wallace. In this view the policy did not constitute a gift to the plaintiff, for want of delivery of pos
2. Appellant .also attacks the third finding, wherein it is found that W. B. Hayford was at the date of the execution of the deed to his wife (December 7, 1886) insolvent and unable to pay his debts, and that among his creditors was defendant, whom he owed $2,500, etc. Upon this issue there was testimony tending to show that the firm of Hayford, Perkins & Co., in December, 1885, and December, 1886, owed some $35,000 to $40,000, and was possessed of assets in lands, buildings, book accounts, notes, etc., sufficient to meet all their liabilities and leave a balance of say $25,000 to $28,000; that Hayford owed several thousand dollars in individual debts, but had an interest in a colony known as “Chicago Park,” which, in the opinion of witnesses, was worth, in 1886, from $20,000 to $30,000. This Chicago Park enterprise, it is easy to see, was a speculative business, with valuations fixed at “boom prices,” and which was a disastrous failure, becoming worthless as an investment. There is no pretense that any considerable portion of the land was or could be sold in 1886 at any price. Hayford was sued for some $2,200, and a judgment obtained against him for that amount, which he was able to and did compromise, for $1,100. He admitted that he was pushed by his creditors, and did not pay; and, notwithstanding the favorable showing as to assets, the stubborn fact remains that in the same month that Hayford conveyed the land in question to his wife, viz., December, 1886, the firm of Hayford, Perkins & Co. assigned all their property to one Egbert, for the benefit of their creditors; that said Egbert advanced $17,000 of his own funds to pay firm debts, and up to the time of trial of this cause (November, 1893) had not been able to reimburse himself from the firm assets for the money thus advanced, while Hayford had gone through in
3. Appellants further contend that the findings do not support the judgment. This question is not involved in an appeal from an order denying a motion for a new trial. Errors in the conclusions of law, drawn from the facts as found and in the judgment entered thereon, are not errors of law occurring during the course of the trial, but subsequent thereto, and can only be taken advantage of by an appeal from the judgment: Shepard v. McNeil, 38 Cal. 74; Martin v. Matfield, 49 Cal. 42; Jenkins v. Frink, 30 Cal. 595, 89 Am. Dec. 134. An error of the trial court in rendering conclusions of law which are not supported by the findings is an error which should be reviewed by a direct appeal from the judgment, and is not a “decision against law/’ for which a new trial should be granted: Shanklin v. Hall, 100 Cal. 26, 34 Pac. 636; In re Doyle, 73 Cal. 565, 15 Pac. 125; Mazkewitz v. Pimentel, 83 Cal. 450, 23 Pac. 527; Kirman v. Hunnewill, 93 Cal. 526, 29 Pac. 124; Brison v. Brison, 90 Cal. 323, 27 Pac. 186. Simmons v. Hamilton, 56 Cal. 493, which seems to hold a contrary doctrine, was concurred in by but two judges, and has not been followed.
A number of exceptions were taken at the trial to the admission and exclusion of evidence. We have examined them with care, and find them either groundless or not of sufficient importance to warrant a reversal. To discuss them at length would occupy much space, and, as they contain no novel questions, would be productive of no good. We recommend that the order appealed from be affirmed.
We concur: Vanclief, C.; Belcher, C.
For the reasons given in the foregoing opinion the order appealed from is affirmed.