65 P. 964 | Cal. | 1901
The facts concerning this action and the law of the case will be found in the opinions of this court upon former appeals, reported in
The property had been seized under writs of attachment issued by the justice's court in an action in which one Dr. Hannon was defendant. It was taken from the possession of Dr. Hannon while upon a ranch which was the property of the plaintiff. The plaintiff claimed title to the property, under a bill of sale from Dr. Hannon. Dr. Hannon's testimony, which was accepted by the court, showed the sale was colorable merely, was not intended by the parties to be a transfer of the title, but was designed as a fraud against the creditors of Dr. Hannon, to save the property from attachments and execution levies which he feared. Hannon was at the time, according to his own testimony, overwhelmingly in debt. The findings are supported by the evidence.
The numerous technical points urged by appellant have been given due consideration, but for the most part they do not merit discussion. It is contended, for example, that the judgment is not supported by the findings, because of the absence of a finding as to the right of possession at the time of the commencement of the action; and the cases of Cooke v. *487 Aguirre,
Again, the affidavits upon which the attachments had been issued from the justice's court were lost, and it thereby became necessary by secondary evidence to prove these papers and their contents. This was done, and the judgments in the cases admitted in evidence without objection, but the objection is here made to the sufficiency of the evidence supporting the findings, that the docket of the justice does not show that affidavits upon attachment were filed. The law does not require the entry, in the justice's minutes, of this fact. (Code Civ. Proc., sec 911.) Again, it is said that there is no evidence in the record to show any formal attachment or any return by the officer. The writs and their returns were offered and admitted in evidence, and the bill of exceptions contains a statement of this fact. Again, it is said that there is no evidence to show that Hannon was indebted to any person at the time he gave the bill of sale. The plaintiff herself testifies that she had become aware of the fact that Dr. Hannon had become insolvent and unable to pay his proportion of the debt of the ranch. Hannon testified to the same effect, and explaining how he gave the fraudulent bill of sale, says that the object was to keep the property on the ranch; "I did not want it attached for my debts, and thought it might be. It was not a drop in the bucket toward payingthem." Again, it is said that the attaching creditor was a creditor subsequent to thegiving of thebill of sale, and that the sale was valid, therefore, as to him. There is no evidence in the record to this effect, saving the evidence that the promissory notes, which were the foundation of the action in the justice's *488
court, were dated subsequent to the date of the bill of sale. But the testimony is that the notes were given by Hannon on account of a long existing debt; and even in the case of subsequent creditors, where actual fraud is established, the sale is void as to them, as well as to prior creditors. (Bump on Fraudulent Conveyances, sec. 295; Brown v. O'Neal,
No other of appellant's points seems to call for discussion, and for the foregoing reasons the judgment and order appealed from are affirmed.
McFarland, J., and Temple, J., concurred.