111 Cal. 435 | Cal. | 1896
This is an action brought by the assignee of an insolvent debtor to set aside a transfer of certain personal property, to wit, a merchandise business, made within one month prior to the filing of a creditor’s petition in insolvency. The appeal is by the assignee from the judgment and order denying his motion for a new trial. The defendant was a creditor of the insolvent debtor, and took a transfer of the business in satisfaction of her debt. It is now claimed that that transfer was violative of section 55 of the Insolvent Act.
In order that plaintiff may set aside this transfer, and recover the property transferred, under the provisions ■of the aforesaid section, he must establish four independent facts, to wit: 1. That the transfer was made within one month of the filing of the creditor’s petition in insolvency, and with a view to give a preference to defendant; 2. That the transferor was insolvent, or in contemplation of insolvency, at the date of the transfer; 3. That the transferee, the defendant, at the time, had reasonable cause to believe that the transferor was insolvent; 4. That the transferee had reasonable cause to believe that the transfer was made with a view of violating or evading one or more provisions of the Insolvent Act.
It is first claimed that the evidence is insufficient to support the verdict. A creditor’s petition for insolvency was filed within thirty days subsequent to the transfer; and it is beyond question that the transfer was made out of the ordinary and usual course of business. (Tapscott v. Lyon, 103 Cal. 313.) The transfer having been made out of the ordinary course of business, that fact was prima facie evidence that it was fraudulent.
Appellant complains of various instructions of the court given to the jury. The court told the jury: “The mere fact that, at the time the defendant purchased the stock of goods mentioned in the complaint from H. J. Hall, the said H. J. Hall was, in fact, insolvent and un
The court further instructed the jury as follows: “If you find from the evidence that at the time the defend
We find no other matters in the record demanding our attention.
For the foregoing reasons, the judgment and order are reversed, and the cause remanded for a new trial.
Harrison, J., and Van Fleet, J., concurred.