Kalinowski v. McNeny

• Decision Date: 07 June 1912
• Citation: 68 Wash. 681,123 P. 1074
• Parties: KALINOWSKI v. McNENY et al.
• Court: Washington Supreme Court

123 P. 1074

68 Wash. 681

KALINOWSKI v. McNENY et al.

Supreme Court of Washington

June 7, 1912

Department 2. Appeal from Superior Court, King County; Ivan L. Hyland Judge pro tem.

Action by K. E. Kalinowski against Julia A. McNeny, as executrix of the estate of James McNeny, deceased, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

John E Humphries and George B. Cole, both of Seattle, for appellant.

S. H Steele and E. S. Lovett, both of Seattle, for respondents.

MORRIS J.

This action involves the rights of creditors of the vendee in an admitted fraudulent conveyance. The facts are these Appellant was formerly the wife of one Gladding, from whom she had obtained a divorce. Subsequent to the divorce the parties thereto again lived together for a number of years, when appellant contracted a second marriage with C. V. Kalinowski, her present husband. Gladding, upon learning of this second marriage, made claim to part of the property in question, and threatened to bring, and did bring, an action to establish what he claimed to be his rights therein. Appellant, seeking to defeat any enforcement of Gladding's claim against this property, conveyed it to her present husband on February 24, 1908; the deed reciting both good and valuable considerations. Subsequently, and while he held the title to the property, C. V. Kalinowski became indebted to James McNeny, the testator of respondent, upon the faith and credit of his ownership of the property. This indebtedness was on October 5, 1909, merged into a promissory note for $1,000 due in one year. James McNeny died on March 1, 1910, and on June 11, 1910, appellant, having amicably adjusted her differences with her former husband, and feeling secure from any attack upon her title, received from her present husband a reconveyance of the land. This deed recites both good and valuable considerations, but the court below has found, being sustained by the record, that it was made without consideration, and for the purpose of hindering and delaying the collection of the McNeny debt. The McNeny note ripened into judgment, execution was issued, and levy made upon this land, when appellant brought this action to enjoin the selling of the land. Relief was denied her below, and she appeals.

Some question is raised as to the court's ruling on the admission of testimony as to conversations with James McNeny at the time of the making of the first deed. Our statute (Rem. & Bal. Code, § 1211) is so plain upon excluding testimony of this character, in actions where the adverse party defends as legal representative of a deceased person, that no discussion of the point is necessary to show the rulings complained of were correct.

The main contention of error, however, is based upon appellant's contention that the McNeny judgment cannot in any event be enforced against this property even though it be admitted that the deed to C. V.

Kalinowski was made for the purpose of hindering and defrauding the creditor of the appellant; and, conceding the property in his hands would be subject to the claims of his creditors, his right of alienation is perfect until his creditors have obtained an enforceable lien upon the property. Undoubtedly many cases can...