This is аn appeal from a judgment quieting the title of defendant Yana Kai to a parcel of real property. Appellant is the assignee of a judgment recovered by Yokohama Specie Bank, Ltd. against defendant Masajiro Kai. On July 26, 1940 plaintiff and appellant caused levy of execution to be made on the interest of Masajiro Kai in thе property in question. Yana Kai moved to have this levy vacated and her motion was granted in the trial court. From this order an appeal was taken resulting in a reversal of the order.
(Yokohama Specie Bank, Ltd.
v.
Kitasaki,
While that appeal was pending appellant herein commenced this action. The first count was for declaratory relief. (A second count was eliminated by the sustaining of demurrer thereto- and the failure of appellant to amend.) By the first count *408 appellant sought а declaratory judgment that the judgment assigned to him was a lien upon the real property superior to any interest оf the defendants.
Respondent Yana Kai by answer set up a deed from Masajiro Kai to herself made in 1911 and prayеd for judgment quieting her title against plaintiff.
On the trial plaintiff offered to prove that the deed by Masajiro Kai to Yana Kаi in 1911 was made without consideration and with intent to defraud the then existing creditors of Masajiro Kai and further that from the time оf the conveyance to Yana Kai up to a time subsequent to the entry of the judgment relied upon Yana Kai had рermitted Masajiro Kai to exercise all of the elements and indicia of ownership. Objection was sustained to this оffer of proof and this ruling is urged as error.
Preliminarily it is argued by respondent that these issues were not tendered by plaintiff’s cоmplaint and the proffered evidence was therefore not within the issues. The respondent pleaded the deеd from Masajiro Kai to herself by her answer and asked for affirmative relief quieting her title against appellant. In this statе of the pleadings the law gave the plaintiff
“a
replication without pleading to this asserted title” and the plaintiff cоuld “overcome the effect of the deed and so destroy its validity upon either equitable or legal ground. ’ ’
(Wolf
v.
Gall,
The trial сourt took the view that the Yokohama Specie Bank, Ltd., having become a creditor subsequent to the transfer could not attack the transfer on the ground that it was made in fraud of existing creditors. This view finds support in some of our decisiоns. (12 Cal.Jur. 978.) Appellant counters with the proposition that a voluntary conveyance in fraud of existing creditors is in violation of our penal laws (Pen. Code, §§ 154 and 531) and is therefore not merely voidable but void for illegality.
(California Delta Farms
v.
Chinese American Farms,
In the Everts case the court was, however, dealing with the rights of an existing creditor.
Turning to the rule in other jurisdictions we find this statement in 24 Am.Jur. 284-5:
“The prevailing opinion is that if it is shown that there was mala tides or fraud in fact in the transaction, whether the actual fraudulent intent related to existing creditors or was directed exclusively against subsequent creditors, thе effect is precisely the same, and subsequent creditors may, on the strength of such fraud, successfully impeach the conveyance. ’ ’ Since the adoption of the Uniform Fraudulent Conveyance Act in 1939, it is clear that as to conveyances thereafter made subsequent creditors may successfully attack a conveyance if made with actual intent to defraud existing creditors. (Civ. Code, § 3439.07;
Themo
v.
Themo,
There is much force in the suggestion, which has never been squarely passed uрon in the appellate courts of this state, that a conveyance with actual intent to defraud existing creditоrs being in violation of the penal provisions above cited is absolutely void for illegality and for that reason subject to attack by any creditor. The general rule is thus expressed in
Berka
v.
Woodward,
In addition to the eases cited above and many others, the following very recent cases follow аnd apply this rule:
City of Los Angeles
v.
Watterson,
We conclude that even before the adoption of Civil Code, *410 section 3439.07, a voluntary conveyance made with actual intent to defraud existing creditors was void fоr illegality and hence subject to attack by any creditor, existing or future.
Independently of this conclusion the proffered evidence was admissible under the authority of
McAlvay
v.
Consumers’ Salt Co.,
“But it is also the rule that though the nominal title to property be conveyed to another, it is nevertheless liable for the debts of its owner [citing cases] upon the principle that one сannot be the equitable owner of property and still have it exempt from his debts.”
The proffered evidence tаken as a whole would support an inference that the conveyance to Yana Kai in 1911 was merely colоrable to escape liability of Masajiro Kai for existing debts and that he retained the beneficial and equitable ownership until after the judgment was obtained against him.
Certain other defenses set up' in the answer of Yana Kai were nоt made the basis of any findings by the trial court and cannot therefore be relied upon to support the judgment on this aрpeal; nor was the right of Masajiro Kai to testify as to matters occurring during his marriage to Yana Kai questioned by any objection made in the trial court. We are not called upon to pass upon any of these questions at this time.
The judgment appealed from is reversed.
Nourse, P. J., and Spence, J., concurred.