Duhart v. O'Rourke
| Decision Date | 30 August 1950 |
| Citation | 99 Cal.App.2d 277,221 P.2d 767 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DUHART et al. v. O'ROURKE et al. Civ. 17427. |
Guerin, MacKay & Tendler and Max Tendler, all of Los Angeles, for appellants.
Rupert B. Turnbull, Los Angeles, M. C. Yearing, Los Angeles, for respondents.
Appeal by defendants Abbot Bernay, Maurice T. Leader, Richard H. Sampson, A. W. Appel, and Northwest Casualty Company, a corporation, from a judgment for plaintiffs in an action in which plaintiffs sought a declaration of rights with respect to a parcel of realty standing of record in the name of Lizzie O'Rourke, a married woman, as her sole and separate property.
Prior to October 21, 1946, the property stood of record in the names of John O'Rourke and Lizzie O'Rourke, husband and wife, as joint tenants. On October 19, 1946, a deed was executed by them granting the property to Lizzie O'Rourke as her sole and separate property. On the same day she executed a declaration of homestead on the property. The deed and the declaration of homestead were recorded October 21, 1946.
Appellants claim a superior interest in the property as lien holders under trust deeds executed by Lizzie O'Rourke. Respondents, judgment creditors of John O'Rourke, assert a superior interest by reason of their purchase of the property at execution sale.
The litigation stems from the following: Between August 28 and September 6, 1946, John O'Rourke and Albert Daener, by false representations defrauded plaintiffs of 2000 sacks of wheat, valued at $10,000. They sold the wheat for $9,600 and retained the proceeds.
On November 21, 1946, plaintiffs commenced an action in the superior court of Los Angeles County (No. 521905) against John O'Rourke and Albert Daener for the value of the wheat fraudulently obtained by them and caused a writ of attachment to be levied on the real property involved here. The attachment was levied against the property standing in the name of Lizzie O'Rourke and against the interest of John O'Rourke therein. Lizzie O'Rourke filed a complaint in intervention alleging the property was her sole and separate property and praying that the writ of attachment be released. Plaintiffs answered, alleging that the deed of October 19, 1946, was executed to hinder, delay and defraud the creditors of John O'Rourke, including plaintiffs, and to prevent them from reaching the property. Plaintiffs recovered judgment against O'Rourke and Daener. Lizzie O'Rourke was denied any relief. The court found that the attached property was conveyed in fraud of the creditors of John O'Rourke, including plaintiffs, and that the property, irrespective of its record title, was the community property of the O'Rourkes, and concluded that the attachment was in force as an attachment against their community property. Judgment was accordingly rendered November 25, 1947. No appeal was taken from the judgment and it has since become, and was at the time of the filing of the present action, final.
On October 26, 1947, Lizzie O'Rourke executed a trust deed, duly recorded, in favor of appellants Sampson, as trustee, and Appel, as beneficiary, as security for the repayment of an obligation set forth therein, i. e., to secure Appel upon the payment by him of any losses sustained by Northwest Casualty Company upon a forfeiture of its bail bond securing the appearance of John O'Rourke in criminal proceedings instituted against O'Rourke and Daener as a result of their fraud against plaintiffs. See People v. Daener, 96 Cal.App.2d 827, 216 P.2d 511.
On October 29, 1947, Lizzie O'Rourke executed another trust deed, duly recorded, in favor of appellants Bernay and Leader, beneficiaries, as security for the payment of $1,000 attorneys' fees for services rendered and to be rendered O'Rourke in the criminal proceedings.
On February 9, 1948, plaintiffs purchased the property at execution sale in action No. 521905. The proceeds thereof were applied on their judgment, and the writ of execution was returned wholly satisfied. The time for redemption expired February 9, 1949.
On March 19, 1948, the present action was filed by plaintiffs against appellants the O'Rourkes, and others, seeking a determination of their rights in the property. The complainant alleged facts concerning the fraud of O'Rourke and Daener, the recovery of judgment in action No. 521905, and the subsequent proceedings culminating in the sale of the attached property to plaintiffs. The complaint further alleged that the declaration of homestead executed individually by Lizzie O'Rourke was void because (1) the judgment in action No....
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