GEORGE W. SCHELL, Appellant, v. A. W. GAMBLE et al., Respondents, 153 Cal. 448

ANGELLOTTI, J. This is an appeal from an order denying plaintiff’s motion for a new trial. The action was instituted September 15, 1902, by a judgment creditor of defendant A. W. Gamble, to subject certain real property in Santa Cruz and Contra Costa counties, standing of record in the name of defendant W. H. Gamble, son of defendant A. W.

Gamble, to execution upon the judgment of plaintiff, upon the ground as to the Santa Cruz property, that a conveyance thereof by the father to the son, made July 20, 1893, was made with intent to defraud certain designated creditors and is void, and upon the ground as to the Contra Costa property, that the same is in fact the property of A. W. Gamble, purchased by him in November, 1898, and that the legal title thereto was at the time of the purchase caused by said A. W. Gamble to be placed in his son, with the intent and for the purpose of defrauding said creditors.

The principal contention of appellant is that the findings of the trial court in favor of defendants upon these matters are not sufficiently supported by the evidence. This contention cannot be upheld. First, as to the Santa Cruz property: The conveyance of this property was made by A. W. Gamble to his son on July 20, 1893, although the deed was not recorded until July, 1894. At the time of the execution of the conveyance, no one of the designated creditors was a creditor of A. W. Gamble, and the record does not show that he then had any creditor at all. The designated creditors were one Lasserot, J. H.

Skirm, and W. D. Storey, attorneys at law, and plaintiff. Lasserot’s claim was founded in tort, and none of the acts upon which the claim is based was committed until December 1, 1893. Mr. Skirm’s claim was for fifty dollars for legal services, rendered in the year 1894, he having been retained in December, 1893. Mr. Storey’s claim was also for legal services, he having been first retained in July, 1894. Plaintiff’s claim was for legal services rendered under employment of date March 2, 1898.

The record does not show that, at the time of the execution and delivery of the conveyance, there was any probability that any of these parties would ever be a creditor of A. W. Gamble. It is true that a deed of gift, which we may assume this deed to have been, may be void because made with intent to ■enable the grantor to defraud future creditors. (See Bush & Mallett Co. v. Helbing, 134 Cal. 676, [66 Pac. 967], and authorities there cited.) But to bring a case within this rule the deed must be fraudulent in its inception, made with the ■specific intent to defraud future creditors.

The question of such fraudulent intent as to such future creditors is one of fact and not of law (Civ. Code, sec. 3442), and the burden of proof is upon the complaining creditor to show that the conveyance was made with such intent. (Bush & Mallett Co. v. Helbing, 34 Cal. 676, [66 Pac. 967].) We have carefully examined the evidence contained in the record, and find no-warrant for holding that there is not therein substantial evidence to support the conclusion of the trial court in this matter so far as the conveyance of the Santa Cruz land on July 20, 1893, is concerned.

The most that appellant can establish, in this regard is that there was a substantial conflict of evidence, and, under the well-settled rule, the decision of th& trial court is conclusive. Second, as to the Contra Costa property: The evidence was. ample to sustain the conclusion of the trial court that A. W.. Gamble never owned any interest whatever in this property. It was acquired by W. H. Gamble from one Bishop in the year 1898, apparently in exchange for certain property of Mrs. A. W. Gamble, who was the wife of A. W. Gamble" and. the mother of W. H.

Gamble, and the assumption by the-grantee of certain existing mortgages on the property. No-part of the consideration therefor came from A. W. Gamble. It is claimed that the real property given by Mrs. Gamble in exchange for this property had been fraudulently conveyed toiler by W. II. Gamble. She acquired this property in the year-1893 by deed from her husband, and there was substantial evidence to the effect that it was so conveyed to her in payment of a just debt due her from him, and without any intent, on his part to defraud anybody.

Other findings attacked are not material in view of our-conclusion upon those already discussed. Several alleged errors of law on the part of the trial court, in the matter of the admission and rejection of testimony were assigned in the statement on motion for new trial, but they are noticed in appellant’s brief only by a general statement-that all of them were valid and well taken. We have, however, examined them, and find nothing therein of sufficient-importance to warrant a reversal, even if any of them was. technically -erroneous. The order denying a new trial is affirmed. Shaw, J., and Sloss, J., concurred.