MAYBERRY v. WHITTIER

McFARLAND, J.

This is an action against W.F. Whittier, who is the main defendant, and also W.A. Hammel, as sheriff, to enjoin defendants from selling certain property of plaintiff under executions issued on judgments in favor of Whittier against E.L. Mayberry, plaintiff's former husband and to quiet plaintiff's title to said property as against Whittier. The judgment was substantially in favor of defendants; and from the judgment and an order denying a motion for a new trial plaintiff appeals.

Plaintiff was divorced from her former husband by a judgment rendered November 22, 1899, the ground of divorce being extreme cruelty by her husband. By that judgment the community property was divided; and the property involved in this present action was awarded to plaintiff. There was nothing in the judgment in the divorce case about alimony or maintenance; and before that judgment was rendered Whittier had recovered judgments in quite large amounts against the husband, E.L. Mayberry. Under those judgments he had levied executions on property awarded to plaintiff by the divorce judgment, and was about to sell the same when this present action was commenced to enjoin such sale, etc. In the briefs there are elaborate discussions of a good many questions; but there are only a few points, or propositions, which need be noticed.

It is clearly the general rule that upon a division of community property under a divorce decree the former husband and wife each take the part awarded subject to prior liens; and it has been held that the part awarded either wife or husband is subject to community debts not reduced to liens. (Panaud v. Jones, 1 Cal. 488; Packard v. Arellanes, 17 Cal. 535; Johnston v. S.F. Savings Union, 75 Cal. 134; Frankel v. Boyd, 106 Cal. 608.) Therefore, in the case at bar property awarded to appellant by the divorce decree was subject to the lien of Whittier's judgments, unless this case comes within some exception which takes it out of the rule. And it is contended that even if the general rule be as above stated, still appellant's right to the property awarded her is superior to respondent's liens by virtue of a certain interlocutory order made in the divorce case, which, it is contended, was warranted by section 140 of the Civil Code. By that section it is provided that during the pendency of a divorce suit, "The court will require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case"; and during the pendency of the divorce suit of Mayberry v. Mayberry the court in which said suit was pending made an order that until the final judgment certain property, including the property here involved, "be and the same is hereby set apart as security for the alimony and maintenance of said plaintiff and is hereby charged with a lien in favor of plaintiff for the payment of alimony in said action and the maintenance of the plaintiff and as security for the payment and satisfaction of any judgment which may be rendered in said action in favor of said plaintiff." But, as is said in the opinion of the learned judge of the court below, "the only provision of that chapter concerning maintenance or payments to be made by the husband are section 137, giving the court power to require the husband to pay as alimony to the wife any money necessary to enable the wife to support herself or children or to prosecute or defend the action, and section 139, which authorizes the court, where the divorce is granted for the offense of the husband, to compel him to provide for the maintenance of the children of the marriage and to make such suitable allowance to his wife for her support as the court may deem just, having regard to the circumstances of the parties"; and we agree with the learned judge that the provisions of section 140 cannot be extended "so as to embrace the matter of the division of common property." Whether or not a decree for alimony and maintenance — which involve duties owing by the husband to the wife — would constitute a lien superior to the liens of general community creditors, is a question not here involved. The said interlocutory order of the court is therefore of no consequence in this case. And the notice of lis pendens filed by appellant during the pendency of the divorce suit had no legal significance. (See Sun Ins. Co. v. White, 123 Cal. 196.)

There is a good deal of discussion in the briefs of the subject of marshaling assets. Of course, under that doctrine, it was the right of the appellant to have Whittier resort first to the property awarded to the husband by the divorce decree; but it is found that he had levied upon and sold all of such property except as hereafter noticed. One of the parcels of property set apart to the husband was the undivided one-third of a tract of land known as the El Molino Ranch, and this was levied upon by Whittier; but by agreement the husband conveyed the property to Whittier for $20,000, which was credited on the latter's judgment, and the levy was released. The court below found that the appellant was not bound by this agreement, and that the property was of the value of $35,000; and the court correctly ordered that the difference — $15,000 — be credited on Whittier's judgments. There was also a bay horse named McKinney which was levied upon; but the husband claimed this horse as exempt from execution and it was released. The court decreed that as the judgment in the present action cannot bind the husband, he not being a party to it, the horse must be sold, upon appellant giving therefor an indemnifying bond, and the proceeds of the sale credited on Whittier's judgment. We think that this ruling was correct, as Whittier should not be held for the value of the horse before it is determined, as against the husband, that it is not exempt. Under this view it was not necessary for the court to find the value of the horse. There was also a black horse which, while it was still community property, had been levied upon by Whittier and released; this was before the decree of divorce by which the property was divided, and this horse was sold by the husband, and was not included in the second levies made after the divorce judgment. Therefore, what is said by appellant about this horse is not material.

It is contended by appellant that the sales made under the executions were the results of fraudulent conspiracy between the husband and Whittier and were for inadequate prices. But the court below found that there was no fraud, although the sums were for less than the full value of the property sold. Upon this subject the learned judge, in an opinion delivered at the time of his decision, says: "But whether the prices are inadequate or not may be said to be immaterial, because the law is well settled that while inadequacy of price may be given in evidence as a circumstance tending to show fraud on the part of the creditor who has purchased at his own execution sale, yet it is never of itself sufficient as a ground for vacating such sale. In this case none of the elements of fraud are sustained by the evidence except the single circumstance of inadequacy of price. It is clear from the authorities referred to that the sale cannot be set aside for that cause alone." These views are correct, and, we think, amply warranted by the evidence — as were all the findings above referred to.

The judgment and order appealed from are affirmed.

Henshaw, J., and Lorigan, J., concurred.

The following opinion was rendered upon petition for rehearing by the court in Bank August 31, 1904: —