Moore v. Besse , 43 Cal. 511 ( 1872 )

By the Court,

Niles, J.:

The defendant, Samuel H. Besse, being in possession of a portion of the public land of the United States, open to preemption and settlement, made a conveyance of the land to his father, the defendant, Samuel Besse, without consideration, and in anticipation of a threatened suit against him by the plaintiff, and with the intent to prevent the enforcement of the plaintiff’s claim. Soon thereafter the plaintiff commenced suit upon his claim in the District Court against Samuel H. Besse, and recovered judgment. Execution was issued upon this judgment, and returned nulla bona. After the conveyance to him, and prior to the date of the judgment, Samuel Besse filed his declaratory statement as a preemptioner, and in due time received a patent for the land from the United States. Afterward, and more than two years after the docketing of plaintiff’s judgment against Samuel H. Besse, Samuel Besse sold and conveyed the land, for a valuable consideration, to the defendant Wilson, who had at the time of the conveyance, full notice of all the circumstances of the sale by Samuel H. Besse to his father. The plaintiff now seeks, by a bill in equity, to subject the land to the lien of his judgment.

The conveyance from Samuel H. Besse to his father, Samuel Besse, could operate as a fraud upon the plaintiff only to the extent of the interest which the plaintiff would have acquired by purchase at a sale under his execution of the land fraudulently conveyed. This interest could be only that which Samuel H. Besse would have had at the time of the levy of execution, but for the fraudulent conveyance; for the interest of the judgment debtor at the date of the levy is all that passed by sale under execution.

Samuel H. Besse had no title whatever to the land. He had settled upon it, and was in a position to file a declaratory statement, and take other required steps to procure the title of the United States. This was a personal privilege, which he could exercise at his pleasure, but which he was not bound to exercise, either for his own or for the plaintiff’s benefit. He could at any time abandon his possession, and deprive himself of his right of preemption. He did this by his conveyance to Samuel Besse; for, although he could not transfer any right of preemption arising from his possession so as to vest it in another, he could voluntarily extinguish that right. (Quinn v. Kenyon, 38 Cal. 502.)

It is evident that the purchaser at a sale under the plaintiff’s judgment could have obtained, by means of his purchase merely, no interest in the land which would have enabled him to procure the title under the preemption laws of the United States.

It follows that the admitted fraud in the conveyance from Samuel H. Besse to Samuel Besse could not affect the patent which Samuel Besse afterward acquired, and which the plaintiff' could not have acquired by proceedings under his judgment.

Judgment affirmed.

Mr. Chief Justice Wallace, being disqualified, did not sit in this case.