15 Cal. 348 | Cal. | 1860
Field, C. J. concurring.
This is an action for the partition of certain property, and an account. The Court ordered the property to be sold, and the proceeds distributed. After the sale, one James E. Galloway filed a petition in the case, claiming so much of the proceeds as had been ordered to be paid to the plaintiff. The petitioner is a creditor of the plaintiff’s vendor, and the proceeding is simply an attempt to defeat the conveyance to the plaintiff, on the ground of fraud. For this purpose, the facts stated in the petition are wholly insufficient. There is no allegation of insolvency, and the charges of fraud are in the most general form. The conveyance, however fraudulent as to creditors, is valid as between the parties, and no one can impeach it without showing that he has been injured by it. He must show that he has been deprived of his remedy at law, and is compelled to resort to equity for relief. If the debtor has other property which may be reached by the ordinary legal remedies, a Court of Equity will not interfere. It must be affirmatively shown that such remedies have been exhausted, or that a resort to them would be fruitless and unavailing. Nothing of the kind appears in the petition, and the charges of fraud are comprised in the general allegation, that the conveyance was merely colorable, and designed to hinder, delay and defraud creditors. The facts are not stated, and it has always been held, that fraud could not be alleged generally, but that the specific facts constituting the fraud must be averred.
It follows that the relief sought by the petition was properly denied, and the order denying it must, therefore, be affirmed.
Ordered accordingly.
