Taaffe v. Josephson

7 Cal. 352 | Cal. | 1857

Burnett, J.,

after stating the facts, as above, delivered the opinion of the Court—Murray, C. J., concurring.

If any part of the entire consideration of a contract is illegal, the whole contract is void. Chitty on Contracts, 371, and authorities referred to in note 1. So, if an entire judgment be composed of several elements, and one or more of them is illegal, the whole judgment is void, as against creditors. 12 Pick., 388, Fairfield v. Baldwin; 22 Pick., 545, Kendall v. Lawrence; 3 Metcalf, 49, Pierce u. Partridge; 4 Wend., 100, Wilder u. Fondey.

There would seem to be no question as to the justness of this position. In the case of Fairfield v. Baldwin, above referred to, it was insisted that the attachment was good, at least in part. In answer to this, the Court said : 1

“ The argument amounts to this, that a man having a just claim to a small sum, who should fraudulently bring forward claims to a much larger amount not due, and who should be detected, should be put in as good a condition, at least, as if he had not mixed the good and the bad together, and consolidated the whole into a judgment. We think the law is directly the reverse, and the fraud corrupts and destroys the whole.”

If these views be correct, the judgment of Samuel «. Josephson must stand or fall, as a whole. And it must also be clear, that if there was an actual intent to defraud other creditors, existing in the mind of Samuel, at the time he issued his attachment, that the judgment would be void. The only question then to determine is, whether the fact of knowingly taking a judgment for more than was due at the commencement of the suit, is, in itself, in contemplation of law, conclusive evidence of fraud.

It was held by this Court, in the late case of Alvarez u. Bran-nan, that fraud may be committed, when there is no fraudulent intention actually existing in the mind of the party at the time the act was done. In other words, the law irresistibly draws the conclusion of fraud from certain established facts, without any further inquiry into the real motives of the party. In the present case, the defendant, Samuel, knew the fact, that the note was not due; and, knowing this fact, he commenced his suit before it was due, and took his judgment for the full amount. And when I say he knew that the note was not due, I mean to say that the law draws this inference from the facts proved. He is presumed to know the law, and whether he did or not, the law holds him equally responsible; and knowing the law, he was bound to know the contents of the note, and that it was not due until after the suit was commenced. And whether any fraud was actually intended or not, the facts established prove that conclusion. If we concede the fact, that fraud was actually intended, it is difficult to see how the present plaintiffs could prove that fact in any other way, than by showing that Samuel knowingly commenced his action before the note was due. An intent, therefore, to defraud and injure other creditors, follows as a matter of course. Every man is presumed to intend the legitimate consequences flowing from his own act. If Samuel could commence his suit one day before the note was due, and thus gain a priority over other creditors, he could gain, the same priority by commencing his suit at any other time before the note was due. If we once break down the limits set by law, then wo have no certain rule left.

Our Statute of Frauds requires an immediate delivery of personal property, and an actual and continued change of possession, to make the sale good, as against creditors, and subsequent purchasers in good faith. This rule has been considered by the wisest and best judges as the most simple and efficient, and, therefore, productive of the most good. So the rule, that a creditor who knowingly takes a judgment against a debtor for an amount greater than the debt then due, shall be postponed to other creditors, is plain, intelligible, and efficient, and in the end must be productive of the greatest amount of good.

The cases already cited, though differing in some respects from the present case, seem to sustain the view I have taken. See also, 6 Paige, 108.

For these reasons, I think the judgment of the Court below should be affirmed.