Billings v. Billings

| Cal. | Jan 15, 1852

Justice Heydenfeedt

delivered the opinion of the Court. In,

this case, it was stipulated by counsel, in open Court, that the Court should decide upon the legal effect of the deed of assignment, aside from any peculiarity in the agreed case, which might prevent us from so doing.

The appellant insists that the deed of assignment bears upon its face certain indicia which are presumptive evidence of an “intent to delay, hinder, or defraud creditors.” It is only in regard to one out of several of those pointed out by counsel, that we assent to the proposition. The power given in the assignment to sell on credit is presumptive evidence of a fraudulent intent to hinder and delay, and for the reasons which the appellant’s counsel have so well argued. Such a power conferred upon an assignee of the debtor’s own selection, may generally be presumed to lead to collusion for the benefit of the debtor. It would certainly enable the assignees to delay the creditors indefinitely, by selling the property upon long credits; and it is no answer to this objection, as insisted by the respondent’s counsel, that a court of equity could control him, because, first, if the power is a valid one, it must be valid to all intents, and being the act of the party entitled to confer it, the court could not interfere to take it away; and secondly, the property being once sold, the Court could not take it away from the innocent purchaser, and the wrong would be irremediable. The case of Barney v. Griffin, 2 Comstock, 365, was a case precisely the same as the one under consideration; and although we are not prepared to go as far as the Court there went, yet we cannot but approve the reasoning of that decision.

Holding this opinion on the point just considered, the next question to be decided is, does the record shew any error which requires us to reverse the judgment ? The 23d section of our Statute of Frauds declares, “ The question of fraudulent intent in all cases arising under the provisions of this act, shall be deemed a question of fact, and not of law.” And section 17 of article 6 of the Constitution says, “Judges shall not charge juries with respect to matters of fact, but may state testimony; and deliver the law.” In construing the section above quoted from the Statute of Frauds, we design to give it the full effect to which it is entitled; and therefore we decide, that although the question of fraudulent intent is made a question of fact in all cases, yet wherever the law declares that certain indicia are conclusive evidence of fraud, a verdict against such conclusive evidence should in all cases be set aside. On the other hand, where the evidence of fraudulent intent is declared by law to be only presumptive, the jury have the power, upon considering the whole case, to find against such presumption; and the Court would have no right, upon that ground alone, to interfere with the verdict. Such is the effect which we feel bound to give to the statute.

The counsel for the appellant argued this case upon the hypothesis that the District Court refused to decide that the power to give credit was presumptive evidence of fraud. We cannot discover this by anything which appears in the record;—if we did, we would not hesitate to reverse the judgment. • The requests to the Court below are each accompanied by the same commencement, which asks the Court to decide “that these assignments are void.” Holding, as we do, that the power given to the assignees to sell on credit is not conclusive, but only presumptive evidence of fraud, it follows that the Court correctly refused to decide that the deed was void on that ground; and the Court having also, in the capacity of a jury, passed upon the facts, and found against the presumption of fraud, there is no error disclosed for our correction; and the judgment must therefore be affirmed.