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of a contract to sell land, which contains tion, or regard for each other, as well as the no averment of facts showing the fairness object to be attained by the contract, may of the contract or the adequacy of the con- be given some effect.-O'Hara v. Wattson, sideration, fails to state a cause of action. 172 Cal. 525, 157 Pac. 608. McRae v. Ross, 170 Cal. 74, 148 Pac. 215.

15. Where fraud, accident, surprise, or 6. Where the complaint does not allege,

mistake intervenes.-In suits for specific nor does the evidence show, that there was performance, or indeed in any suit to enforce adequate consideration for the obligation a contract or to recover for its breach, parol sought to be enforced, or that the contract evidence may be admitted to show that by was just and reasonable as to the defendants, reason of fraud, accident, surprise, or misspecific performance will not be granted. take the contract does not truly present the Ehrhart v. Mahony. 170 Cal. 148. 148 Pac. actual agreement of the parties.—Hershey 934.

v. Los Angeles Pac. Co., 171 Cal. 353, 153 7. A decree of specific performance can Pac. 230.. not be supported in the absence of allegation and finding that the contract was just and

$ 3392. reasonable and the consideration adequate. 1. Right to specific performance-CondiGibbons v. Yosemite Lumber Co., 172 Cal. tions precedent.-Before the right to specific 714, 158 Pac. 196.

performance may be asserted, the party in8. —Burden of proof.—The burden of al voking it must have performed or offered leging and proving the adequacy of the con to perform on his part.-Cates v. McNeil, 169 sideration is upon the party seeking the Cal. 697, 147 Pac. 944. relief.-Haddock v. Knapp, 171 Cal. 59, 151 2. Part performance sufficient to justify Pac. 1140.

specific performance of such an agreement 9. A court of equity must deny specific is not shown by the taking of possession of performance when the proof shows inade the property without also showing that the quacy of consideration standing alone. possession was known to the owner or that O'Hara v. Wattson, 172 Cal. 525, 157 Pac. 608. it was taken with her knowledge or consent,

10. Determination as to what is a.-In express or implied.-Fritz v. Mills, 170 Cal. determining whether the consideration is 449, 150 Pac. 375. adequate the court is not guided solely by a comparison of the price agreed to be paid $ 3399, with the value of the property to be con

REFORMATION OF CONTRACT. veyed. This is a factor, but it is to be

1-4. Complaint in action for. viewed by the court in conjunction with all

5. Defenses. of the other facts and circumstances of the

6. Grounds of reformation. case.-Haddock v. Knapp, 171 Cal. 59, 151

7. Void contract can not be reformed. Pac. 1140.

11. It is not, however, necessary to the 1. Complaint in action for.-In an action granting of the relief of specific perform for the reformation of a contract the comance that the value of the property to be plaint should allege what the real agreeconveyed, as found by the court, shall be ment was, what the agreement as reduced to exactly equal to the price agreed to be paid, writing was, and where the writing fails to as the law has not fixed any specific degree embody the real agreement.-Auerbach v. of percentage of variation between the value Healy, 174 Cal. 60, 161 Pac. 1157. found and the agreed price which must exist 2. If the complaint seeks the correction in order to justify a denial of specific relief. of a description of land, the pleading must In each case it is for the trial court to describe the premises so as to render certain determine whether under all the circum the location and boundaries.-Auerbach v. stances the consideration is adequate and Healy, 174 Cal. 60, 161 Pac. 1157. the contract fair and reasonable.-Haddock 3. It is necessary to aver facts showing v. Knapp, 171 Cal. 59, 151 Pac. 1140.

how the mistake was made, whose mistake 12. A price which varies somewhat from it was, and what brought it about, so that the value found may be deemed adequate, the mutuality may appear; in this state muif it has been fixed by the free agreement of tuality is not always necessary, as it is suffthe parties acting with full knowledge of cient if there was a mistake of one party, all the conditions, and the contract is fair which the other at the time knew or susand just in other respects.-Haddock v. pected, but the facts showing a mistake of Knapp, 171 Cal. 59, 151 Pac. 1140.

that character, in such a case, must likewise 13. A determination of what is an ade- be alleged.--Auerbach v. Healy, 174 Cal. 60, quate consideration is a question upon which 161 Pac. 1157. the decision of the trial court must in a 4. A complaint in an action to reform a large matter control.-O'Hara v. Wattson, deed on the ground that it does not properly 172 Cal. 525, 157 Pac. 608.

describe the premises intended to be con14. The consideration must not necessa veyed is fatally defective where there is no rily be held inadequate unless the value of allegation that the plaintiff has any title the property at the time of the contract, as or interest in the property, or that the dethe court finds it to be, exactly or even sub fendant has sold and agreed to convey the stantially equals the price fixed by the con property to the plaintiff, or any allegation tract, as other circumstances, such as the as to what the true description is, or that relation of the parties, and their love, a ffec- the mistake would be material if properly

parent efficacy of the deed to pass title without qualification he may assert it in a proper action offensive or defensive. Where the defense is not apparent upon the face of the instrument it may be asserted precisely as might have been done if the document had not been burned. There is no distinction between public records and private instruments, the reason being the same in both cases. The owner of the destroyed instrument is entitled to be placed in a position in which he will not be compelled to establish his rights by secondary evidence.Shores v. Withers, 166 Cal. 403, 137 Pac. 7.

alleged.—Auerbach v. Healy, 174 Cal. 60, 161 Pac. 1157.

5. Defenses.In an action to recover damages for the refusal to make delivery of a specified amount of hops for the year 1911, where there had been similar contracts for 1910 and 1909 the defendants are entitled to defend the action on the theory that the three instruments constituted but a single contract and that a breach of one constituted a failure of consideration which would entitle the defendant to rescind the entire contract. While the defendants might have resorted to the remedy provided in this section they were not compelled to do so. If the instruments in law and in fact constituted but a single contract, the defendants were entitled to consider and declare the same rescinded and terminated upon the happening of a partial failure of consideration which resulted from the alleged wilful and wrongful failure of the plaintiffs to keep and perform an integral part of the entire contract.--Torrey V. Shea, 29 Cal. App. 313, 155 Pac. 820.

6. Grounds of reformation.—The grounds which will justify the reformation of a written contract are: First, fraud; second, a mutual mistake of the parties, and, third, a mistake of one party which the other at the time knew or suspected.--Kepner v. Marble, 26 Cal. App. 696, 148 Pac. 231.

7. Void contract can not be reformed.-A void agreement has no standing in the law, and can not be reformed nor enforced.Ainsworth v. Morrill, 31 Cal. App. 509, 160 Pac. 1089.

8 3423.

INJUNCTION. 1. Construction of section—In general. 2, 3. —Subdivision 1. 4-6. --Subdivision 4.

1. Construction of section-In general.Section 3423 of the Civil Code can hardly be said to be applicable where the action or proceeding has terminated in a final judgment. Unless this were so, the recognized right of the courts in this state to enjoin the inequitable use of judgments would be greatly restricted.—Title Ins. & Trust Co, v. California Devel. Co., 171 Cal. 173, 152 Pac. 542.

-Subdivision 1.4This subdivision is more than declaratory. It establishes a rule and limits the right to issue injunctions as the right was before the adoption of the codes. It is a valid exercise of legislation defining the rights of persons, and operated to take away the right in certain cases.Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

3. Merely enjoining the inequitable use of judgments obtained in a court is not within the meaning of staying a judicial proceeding.-Title Ins. & Trust Co. v. Cal. Devel. Co., 171 Cal. 173, 152 Pac. 542.

4. Subdivision 4.-This is but the enunciation of an old and generally recognized rule of equity jurisdiction.-Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

5. The provisions of this subdivision refer solely to injunctions against the execution of valid statutes. -Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

6. The trustees of a reclamation district are officers of the law within the meaning of this section.-Reclamation Dist. v. Superior Court, 171 Cal. 672, 154 Pac. 845.

§ 3412.

1. When deed will not be cancelled.MA deed of real property by a man to his wife is not subject to cancellation on the ground that she falsely represented prior to the marriage that she had been of good character.-Wilcox v. Wilcox, 171 Cal. 769, 155 Pac. 95.

3415. 1. Reissuance of lost, etc., document, Construction.—The sole object of proceedings hereunder is to restore the record. Other matters have no place in the controversy. If the plaintiffs are entitled to be placed in exactly the position which was occupied by their predecessor in interest, then the deed should be restored and delivered to them as ordered by the court. If the defendant has some defense to the ap

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§ 3439.

FRAUDULENT TRANSFER. 1-3. Acts constituting. 4-6. As between husband and wife.

1. Acts constituting. Under section 3439 of the Civil Code, every transfer of property, made “with intent to delay or defraud any creditor or other person of his demands," is voidable against all creditors of the debtor, and in any attack made under this section, the fraudulent intent of the debtor is an essential part of the plaintiff's case, and the question whether such intent has been established by the evidence is one of fact.--Atkinson v. Western Devel. Syndicate, 170 Cal. 503, 150 Pac. 360.

2. An execution sale under a consent judgment, where the consent is, in effect, not the act of the defendant but that of the plaintiff prosecuting the action, is in reality merely a voluntary transfer.—Title Ins. & Trust Co. v. California Devel, Co., 171 Cal. 174, 152 Pac. 542.

3. The mere fact that a grantor is indebted does not preclude him from convey

is property for a valuable consideration, and where there is no intent to defraud, the

conveyance can not be set aside by creditors of the grantor.-Fuller v. Kelly, 28 Cal. App. 160, 151 Pac. 749.

4. As between husband and wife.--A transfer by a man to his wife to reimburse her for money advanced to him is not in fraud of his creditors, where his remaining assets were apparently in excess of his debts, although after his death such assets proved uncollectible.—Evans v. Sparks, Cal. 532, 150 Pac. 372.

5. An assignment by a man to his wife of corporate stock can not be invalidated as to his creditors by his subsequent act in pledging the stock._Evans v. Sparks. 170 Cal. 532, 150 Pac. 372.

6. Where a husband makes a transfer of all his property to his wife without securing any consideration therefor, and when in debt to his brother and others, the inevitable result of such act is to hinder and delay his creditors; and his own bare statement, unsupported by any facts, that he did not intend to defraud, can not overcome the presumption that he intended the consequences of his wilful and intentional acts.-Knox v. Blanckenburg, 28 Cal. App. 298, 152 Pac. 59.

$ 3440. CERTAIN TRANSFERS PRESUMED FRAUDULENT. Every transfer of personal property, other than a thing in action, or a ship or cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer;

[Exceptions.] provided, however, that the provisions of this section shall not apply to the transfers of wines in the wineries or wine cellars of the makers or owners thereof, or other person's having possession, care, and control of the same, and the pipes, casks, and tanks in which the said wines are contained, which transfers shall be made in writing, and certified and verified in the same form as provided for chattel mortgages, and which shall be recorded in the book of miscellaneous records in the office of the county recorder of the county in which the same are situated;

[Recording of notice of sale.] provided, also, that the sale, transfer, or assignment of a stock in trade (or of such a quantity of a stock in trade as to be substantially a whole) in bulk, or in any manner otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor, transferrer, or assignor, and the sale, transfer, assignment or mortgage of the fixtures or store equipment of a merchant, will be conclusively presumed to be fraudulent and void as against the existing creditors of the vendor, transferrer, assignor or mortgagor, unless at least seven days before the consummation of such sale, transfer, assignment or mortgage the vendor, transferrer, assignor or mortgagor, or the intended vendee, transferee, assignee, or mortgagee, shall record in the office of the county recorder in the county or counties in which the said stock in trade, fixtures or equipment are situated a notice of said intended sale, transfer, assignment or mortgage, stating the name and address of the intended vendor, transferrer, assignor or mortgagor, and the name and address of the intended vendee, transferee, assignee or mortgagee, and a general statement of the character of the merchandise or property intended to be sold, assigned, transferred or mortgaged, and the date when and the place where the purchase price or consideration, if any there be, is to be paid;

[Sales at public auction.] provided, nevertheless, that if such intended sale is to be at public auction the notice above required to be recorded shall state that fact, the time, terms, and place of said sale, the names and addresses of the vendor and auctioneer, and a general statement of the character of the merchandise or property intended to be sold; but such sale shall in no event occur within seven days of the date of recordation of said notice;

[Transfers under order of court.] provided, further, that the provisions of this section shall not apply or extend to any sale, transfer, assignment or mortgage made under the direction or order of a court of competent jurisdiction or by any executor, administrator, guardian, receiver, or other officer or person acting in the regular and proper discharge of official duty, or in the discharge of any trust imposed upon him by law, nor to any transfer or assignment, statutory or otherwise, made for the benefit of creditors generally, nor to any sale, transfer, assignment or mortgage of any property exempt from execution.

History: Enacted March 21, 1872; amended March 12, 1895, Stats. and Amdts. 1895, p. 47; March 10, 1903, Stats, and Amdts. 1903, p. 111;

May 5, 1917, Stats, and Amdts. 1917, p. 255. In effect July 27, 1917. 1. Certain transfers presumed fraudu- 2. A complaint to set aside a fraudulent lent.-Where four months before his bank- deed must show that the plaintiff had estabruptcy a man conveys to his wife real lished his debt against the defendant by estate in consideration of ten dollars, paid reducing it to judgment.-Roberts v. Buckto him by her not as a price for the property ingham, 172 Cal. 458, 156 Pac. 458. but to make the deed legal as they thought, 3. A transfer of personal property made the deed not being a spontaneous transac

by a husband to his wife without consideration or voluntary gift, but because he feared tion can not be claimed by him to be void that his creditors were about to attach the

as to creditors, for lack of change of posproperty, a fraudulent intent is deducible

session after the transfer, as the validity of which will invalidate the conveyance and

the transfer can be attacked only by the make the land recoverable by the trustee in

in creditors.-Knox v. Blancke

creditors.--Knox v. Blanckenburg, 28 Cal. bankruptcy.-Guernsey v. Douglas, 171 Cal.

App. 298, 152 Pac. 59. 329, 153 Pac. 257.

4. Before an action is brought to set 2. Where a debtor has transferred all of aside a conveyance of real estate as in his property, real and personal, without fraud of creditors, it is not necessary that consideration, he will not be permitted to they should first attempt to realize on persay, in attempting to show his solvency, sonal property also transferred in fraud of that the transfer of the personalty was them.-Knox v. Blanckenburg, 28 Cal. App. ineffectual because possession thereof was 298, 152 Pac. 59. not changed.—Knox v. Blanckenburg, 28 Cal. App. 298, 152 Pac. 59.

$ 3442.

DETERMINING QUESTIONS OF FRAUD. $ 3441.

1, 2. Construction of section.

3-6. Fraudulent intent a question of fact, 1. Creditor's right must be judicially

7. Transfer void as matter of law. ascertained.-A pleading by creditors of a corporation which attacks the validity of 1. Construction of section.-Under section transfers of stock in a subsidiary corpora 3442 of the Civil Code, a "transfer or intion to other creditors is in effect a credit cumbrance of property made or given volunor's bill and creates an equitable lien upon tarily, or without a valuable consideration, the debtor's property therein subscribed.- by a person while insolvent or in contemplaTitle Ins. & Trust Co. v. California Devel. tion of insolvency, shall be fraudulent, and Co., 171 Cal. 174, 152 Pac. 542.

voidable as to existing creditors," and where

7. When transfer void as matter of law.A transfer is fraudulent and void as to existing creditors, as a matter of law, when the transfer is voluntary or without a valuable consideration, by one while insolvent, or in contemplation of insolvency.-Wills v. E. K. Wood Lumber & Mill Co., 29 Cal. App. 97, 154 Pac. 613.

§ 3473.

1. Modification of assignment-Construction.-An injunction against the inequitable use of a collusive judgment secured in a court of a foreign country does not offend section 3473 of the Civil Code.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

these conditions are present, the intent of the grantor is immaterial and the transfer, regardless of the actual intent, is voidable as to creditors.-Atkinson v. Western Devel. Syndicate, 170 Cal. 503, 150 Pac. 360.

2. When one is not insolvent when he made the conveyance, but, coincidentally with and by that act, he became insolvent. his insolvency is contemplated by the very act of making the transfer, and it is a transfer made in contemplation of insolvency and therefore void.—Knox v. Blanckenburg, 28 Cal. App. 298, 152 Pac. 59.

3. Fraudulent intent question of fact.-A transfer made with intent to delay or defraud any creditor of his demands is void against all creditors of the debtor. The question of fraudulent intent is one of fact and not of law. If that intent is made out, it is not necessary to show that the debtor was insolvent at the time.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal. 174, 152 Pac. 542.

4. A conveyance by a corporation of its entire assets in consideration of the assumption by the grantee of the indebtedness of the grantor is for a valuable consideration and not fraudulent within this section.Manning v. App Consol. Gold Min. Co., 171 Cal. 610, 154 Pac. 301.

5. Under our statute the question as to whether a conveyance is made in fraud of creditors is one of fact, that is, a question of intent. Where there is no consideration for the deed the intent which is material is that of the grantor; the intent of the grantee and his ignorance of the fraud are immaterial.--Knox v. Blanckenburg, 28 Cal. App. 298, 152 Pac. 59.

6. In an action by a judgment creditor to set aside a conveyance from a man to his wife, on the ground of fraud, the court is required to take into consideration all the circumstances surrounding the transaction, and determine from them as to what the intent of the parties really was.-Hilborn v. Soale, 29 Cal. App. 309, 155 Pac. 130. .

$ 3510.

1. Reason for rule ceasing, rule ceases.Inasmuch as the scheme provided by the code for the transfer of lands and the record of conveyances thereof has removed all the reasons on which the common-law rule, that where a transfer was made by feoffment and livery of seisin, any power of revocation reserved in the feoffment itself was void on the ground that it was repugnant to the grant, was based, it may well be doubted whether this rule would be followed, independent of the provisions of the code.-Tennant v. John Tennant Memorial Home, 167 Cal. 570, 140 Pac. 242.

§ 3515.

1. Consent to act — Construction.—This means that he is not wronged in contemplation of law.-Frankfort Marine Accident & Plate Glass Ins. Co. v. California Artistic Metal & Wire Co., 28 Cal. App. 74, 151 Pac. 176.

$ 3535.

1. Statuten-Contemporaneous exposition. --The history of a statute from the time it was introduced until it was finally passed may afford some aid to its construction.In re Valhoff, 238 Fed. 405.

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