The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1894-05-03
THE BOYDS MUST PAY THE BILL,
A Decree of Divorce as Protec-
ton Against a Debt.
Judge York Discusses Some Interest
ing Questions.
M. II. Franklin's Pursuit. OF n Claim
Upon an Elsinors Estate worth
$4,000 Meets Finally
With Success.

Sueko L VIA yooboruhy u6CluOu TUG Ckeo
OF NJ. E. Frankel VS.. E. H. Boyd ct all,
in accordance with an opinion tled.
This was the second trial OF the Cause. it
having been originally decided by the
late Judge Wade. Judge York's decis-
ion is exactly opposite to that by Judge
Wade:
The defendants were husband and
wife. and during their marriage had &C.
cumulsted by their joint efforts the real
estate described in the complaint. The
property is of the value OF about $50, 900,
and has been worth that sum for at
least seven years last past. On the 9th
OF May, 1891, a decree OF divorce was
made by the court between the defend
ants and the property was awarded to
the wife. Mrs. 3. J. Boyd, who was
plaintiff in the divorce action. The de-
cree of divorce recites that the setting
apart of the property to Mrs. Boyd WAS
subject only to q certain mortgage for
$4,000 executed by plaintiff and defend
ant in favor OF Mary E. Haynes, dated
March Is, 1890" All the other COM
munity property OF the defendants WAS
also awarded to Mrs. Boyd in the decree
OF divorce. The property was so set
apart to the wife under the provisions of
paragraph ] Of section 146, civil
code. E. Ii. Boyd had no separate
estate, but was made by the decree
entirely insolvent. Prior to the divorce
action the large community property Of
the defendants made the credit of E. H.
Boyd coed and he, and his wife on bis
account. had been enabled to obtain all
the credit they desired by reason OF the
ownership of the estate.
The plaintiff in this action, by rea-
son OF the ownership by the defend
ants OF the property described in
the complaint, gave E. H. Boyd credit
for household necesssries, and the de-
fendant, Mrs. Boyd, by reason of such
credit, purchased of plaintiff euch neces-
saries and had them charged on the
books Of plaintiff to e. H. Boyd. At
the time OF the making of the divorce
decree E. II. Boyd was indebted to
plaintiff for such necessaries in the sum
of 5000. After the entry OF the decree
Of divorce this plaintiff sued E. II.
Boyd on account OF such indebtedness,
and recovered q Judgment against
him for that sum. Thereafter, on
November Is. 1892, writ of execution
was issued on said judgment for 5000
against E. II. Boyd snd placed in the
hands OF the sheriff for service. The
sheriff, under the writ, levied upon the
property described in the complaint.
Mrs. Boyd thoreupon served NOTICE
upon the sheriff, stating that the prop
erty was her individual estate and claim
ing the whole thereof as her own. +.
II. Boyd has continued wholly insolvent
since the entry OF the divorce decree,
and the plaintiff cannot obtain satisfac-
ton of his judgment sgainst E. II. Boyd
except by resort to the community prop
erty set apart to Mrs. Boyd in the d.
vorce decree. To obtain such satisfac-
ton of the judgment this action was
prosecuted.
Judge York. in tbs course of his opin-
ion, discusses the question of the inter
est of creditor IN the property Of a
debtor at some length, and lis views are
OF much interest. He says in part:
in the case ct bar there was no
fraudulent conveyance nor any fraud at
all. Had +. H. Boyd made frEuuuIenI
CONVEYANCE to his -EifA-Lshs~ plaiA'in
could have had the conveyance set aside
for fraad and coaId have subjected aaid
p..r.-.y to the payment OF his debt.
This would have been done on the theo-
~ that the plaintiff has an equitable
interest in the property superior to her
right. In the caae at bar the wife pur--
chased goods Of the plaintiff in the name
OF her husband, on the credit the owner
ship of said property gave him. In bal
ancing the equities between her and the
ersditer, which is entitled to priority?
The plaintiff parted with his goods on
that credit. She received them and
with her family enjoyed them. Her po-
sition now ia that she should defeat the
al q
very property which inspired the credit
upon which she was enabled on her
husbands account to make the pur-
chese. =.
"For the defendant it is contended that
the wife became q creditor of the hus-
band and on that ground has prior equi-
ties because the law gives preference
to the vigilant, and the first creditor to
subject property to his claim without
fraud ia the first in right This con-
| tention has received careful considera-
| ton but l am of the opinion that COM
munity property set apart to the wife as
such is different in character from u
Judgment for alimony, which is debt.
| But. eyen il it were true that the
wife became a creditor of her husband
by reason of his delict, it does not fol-
| low that she should take priority over
the creditor under the circumstances Of
this Gaze, The fact of her obtaining thu
credit az her husbands agent, and in
behalf of the community property,
would then remain. The fact would
even remain that her own interest in
the community property was liable for
the dsot and that che herself had created
the liability. Her moral obligation to
the creditor was as great as her bus
banda and that would remain TO defeat
such priority.
"The defendant, 8. ]. Boyd, contends
that plaintiff has no remedy in equity
that if the divorce decree does not
bind plaintiff his rsmedy ia by a levy
upon and sale of the property. This
remedy the plaintiff can pursue. But
the remedy is not adequate. PurohaB-
ers would be wary in purchasing at an
execution sale with the right to sell un-
certain and with the certainty of litiga-
ton over that right.
II, therefore, bold that the plaintiff
should recover In this action. 1t appears
that declaration OF homestead had
been filed On the property described in
the complaint, and that appraisers have
been appointed by this court to spprsise
the property and set apart homestead,
which such appraisers have done. The
| homestead so set apart will, therefore,
be exempt from the operation OF the de.
cree herein ordered. The remainder Of
the property described in the complaint
ia held to be subject to plaintiffs ludg.