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District Court of Appeal, First District, Division 1, California.

MEYER v. THOMAS et al.

Civ. 11070

Decided: April 12, 1940

John F. O'Sullivan, of San Francisco, for appellants. Arthur J. Healy, William E. Barden, and Frank J. Needles, all of San Francisco, for respondent.

On this petition it is urged that in its opinion this court has disregarded the rule of Hilborn v. Bonney, 28 Cal.App. 789, 154 P. 26, and Gray v. Gray, 25 Cal.App.2d 484, 77 P.2d 908, to the effect that when one has been deprived of his property by the fraud of another he may recover the property or sue for damages, and if he pursues the latter remedy he validates the acquisition of the property and becomes only a general creditor of the fraudulent defendant. We may assume, for the purposes of this opinion, that that rule is applicable, and that by electing to take a money judgment in the first action the plaintiff cut off the right to have the specific property returned to him and became a general creditor of Elizabeth Thomas. Then the legal situation is one where the plaintiff has a judgment against Elizabeth Thomas based on her tort. The property, we may assume, has become the community property of Elizabeth Thomas and her husband. The question then presented is whether any of the community property, including the property fraudulently acquired, is liable for that judgment, and whether fraudulent conveyances in reference thereto should be set aside.

The question presented on this appeal, therefore, was whether or not the husband, who is a party to this action, had participated in the tort of his wife. If so, of course, the community property is liable for their tort. On the evidence produced the opinion holds the wife was acting as the agent of the husband, and, therefore, under the decision in Hulsman v. Ireland, 205 Cal. 345, 270 P. 948, and the other cases cited in the opinion, the community property is liable.

There is nothing in the two cases relied upon by petitioner which conflicts with the views herein expressed.

The petition for rehearing is denied.


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