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


Civ. 18422.

Decided: December 19, 1951

Marshall & Farnham, Theodore G. Lee and J. F. Marshall, Long Beach, for appellant. Parker, Stanbury, Reese & McGee and John Henry Peckham, Jr., Los Angeles, for respondents.

The complaint in this case alleges that on October 27, 1948 a judgment was rendered in the Superior Court in favor of plaintiff's assignor and against Carole Cramer for $1,500; that the judgment was entered and an abstract thereof duly recorded; that said judgment was assigned to plaintiff; that a certain lot in Los Angeles county described in the complaint was listed on the official records of the county in the name of Carole Cramer; that the lot was deeded by Carole Cramer and her husband Paul C. Cramer to the defendant Sam Coury; that said Carole Cramer owns no other property and that the conveyance was made to defraud her creditors and in particular plaintiff and plaintiff's assignee. Plaintiff prays that the deed be declared fraudulent and void, and that defendants be required to account for all money received by them as consideration for the deed.

On the trial of the action defendant Sam Coury was examined as a witness under Section 2055 of the Code of Civil Procedure. He testified that in 1945 he leased a dry cleaning plant and business in Hawthorne to Paul Cramer, husband of Carole Cramer; that the lease required Mr. Cramer to pay $300 a month and 5% of the gross profits of the business to Mr. Coury; that October 1, 1948 Mr. Cramer and his wife, said Carole Cramer, deeded the real property described in the complaint and paid some cash to him in settlement of a balance due him from Mr. Cramer under the covenant to pay him 5% of the gross profits of the business; that at the time he recorded this deed Mr. Coury did not know of any outstanding judgment against Mrs. Cramer.

This was all of the testimony presented to the court, except that plaintiff testified to the assignment to him.

Judgment of nonsuit was granted, with prejudice as to the rights of Mr. Coury, and without prejudice as to the rights of Mr. and Mrs. Cramer. Plaintiff appeals from the judgment.

Comparing the date of the judgment sued upon, October 27, 1948, and the date of the Cramers' deed, October 1, 1948, it is apparent that the judgment did not become a lien upon the real property. Code Civ.Proc. sec. 674; Wolfe v. Langford, 14 Cal.App. 359, 112 P. 203.

The record does not show whether the property was the community or separate property of the wife, except for the inference which may be drawn from the fact that she joined with her husband in deeding it. If it was community property, cancellation of the indebtedness of husband and wife was valuable consideration. United States Fidelity & Guaranty Co. v. Postel, 64 Cal.App.2d 567, 149 P.2d 183.

Whether the lot was community or separate property, Mrs. Cramer had the undoubted right, in the absence of fraud, to deed it. Neither consideration nor adequacy of consideration is essential to the validity of a deed. Civ.Code sec. 1040; Odone v. Marzocchi, 34 Cal.2d 431, 211 P.2d 297, 212 P.2d 233, 17 A.L.R.2d 1109. In the absence of clear and convincing evidence of fraud, such a deed will not be set aside. United States Fidelity & Guaranty Co. v. Postel, supra. No proof of fraud is to be found in the testimony of Mr. Coury, standing alone as it does.

The judgment is affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.

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