19 Cal. 41 | Cal. | 1861
—Baldwin, J. concurring.
The statute provides that an attachment of real property shall be made by the officer to whom the writ is directed, “ by leaving a copy of the writ with the occupant thereof; or, if there be no occupant, by posting a copy in a conspicuous- place thereon, and filing a copy, together with a description of the property attached, with the Recorder of the county.” (Prac. Act, sec. 125.) The
We are clear that the filing in the Recorder’s office had no such effect, independent of any consideration of the applicability of the doctrine of relation. After the return of the writ to the Clerk’s
At the time Dimock purchased the property and took his conveyance, both he and Brown were aware of the issuance of the attachment, and that the Sheriff had taken the first step to levy it upon the premises, and hence it was contended on the argument, that the conveyance was void as being intended to hinder, delay and defraud Scott, Vantine and others in the collection of their demand. But there is nothing in this point. Brown was indebted to Dimock for money loaned, and for materials furnished and work done in the construction of the building on the premises attached, and the conveyance was given in payment of the indebtedness. In this transaction, neither Brown ñor Dimock violated any rule of law, even though they knew the effect would be to prevent the subjection of the property to the payment of the debt of Scott, Vantine & Co. As we said in Dana v. Stanfords, (10 Cal. 277) a conveyance giving a preference “ is not fraudulent, though the debtor be insolvent, and the creditor be aware at the time that it will have the effect of defeating the collection of other debts. To avoid the conveyance, there must be a real design on the part of the debtor to prevent the application of his property, in whole or in part, to the satisfaction of his debts. A creditor violates no rule of law when he takes payment or security for his demand, though others are thereby deprived of all means of obtaining satisfaction of their own equally meritorious claims. (Nicholson v. Leavitt, 4 Sand. 252 ; Covanhovan v. Hart, 21 Penn. 495 ; Warland v. Kimberlin, 6 B. Mon. 608 ; Kinnard v. Adams, 11 B. Mon. 102).”
It follows from the views we have expressed, that the judgment of the District Court must be reversed, and that Court directed to enter a decree for the plaintiff in accordance with the prayer of. his complaint; and it is so ordered.