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PART II.

SPECIAL RELATIONS OF DEBTOR AND CREDITOR.

TITLE II.

FRAUDULENT INSTRUMENTS AND TRANSFERS.

$ 3440. Certain transfers presumed fraudulent.

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 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 conveying his 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.

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, 170 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.

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8 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 prop erty exempt from execution.

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

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.

8 3442.

DETERMINING QUESTIONS OF FRAUD. 83441.

1, 2. Construction of section. Creditor's right must be judicially

3–6. Fraudulent intent a question of fact.

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.

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.

8 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.

83515.

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.

8 3535.

1. Statutes-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.

CODE OF CIVIL PROCEDURE.

8 4. 1.

Rule of construction of code.-The court is not disposed to give too strict an interpretation to technical rules of practice, when such interpretation is used for the purpose of preventing a consideration upon the merits of appeals prosecuted in good faith.-Title Ins. & Trust Co. v. California Devel, Co., 171 Cal. 174, 152 Pac. 542.

2. -Head-notes to be considered. The head-notes to the sections of the code are a part of the law, and should be consulted in interpreting the will of the legislature.San Joaquin & Kings River Canal & Irr, Co. v. Stevenson, 26 Cal. App. 274, 277; affirmed by Supreme Court, 26 Cal. App. 285, 147 Pac. 258, following Barnes v. Jones, 51 Cal. 303, and Sharon v. Sharon, 75 Cal. 1, 16, 16 Pac. 345.

3. The head-notes to code sections are not mere editor's notes, but integral parts of the code itself.-Ex parte Wilson, 30 Cal. App. 567, 158 Pac. 1050.

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§ 17. CERTAIN WORDS AND TERMS DEFINED.

As to definition of words and phrases, see ante, Pol. C. pt., $ 17; C. C. pt., § 14; post, Pen. C. pt., 8.7.

"Any cost," in undertaking on appeal from a justices' court, embraces all costs that might be incurred by reason of the appeal.—Cohen v. Connick, 26 Cal. App. 491, 147 Pac. 479.

"Communication," as used in subdivision 2 of section 1881 of Code of Civil Procedure, includes not mere words of client, but attorney's knowledge of acts as well. -Ex parte McDonough, 170 Cal. 230, Ann. Cas. 1916E 327, L. R. A. 1916C 593, 149 Pac. 566.

"Final judgment," as used in section 1251, has reference to the preliminary judgment of condemnation entered in the superior court.-Colusa & H. R. Co. v. Superior Court, 31 Cal. App. 746, 161 Pac. 1011.

"May,” in section 1048, Code of Civil Procedure, need not be construed "must.”Realty Const. & MortgCo. v. Superior Court, 165 Cal. 543, 132 Pac. 1048.

"Other officer," as used in subdivision 3 of section 1986 of Code of Civil Procedure, includes notary public. --- Scott V. Shields, 8 Cal. App. 12, 96 Pac. 385.

Person," as used in section 412, must be given its generic meaning, and construed to authorize service by publications on all corporations. McKendrick Western Zinc Min, Co., 165 Cal. 24, 130 Pac. 865.

"Preponderance of evidence," simply means that the evidence on one side outweighs, or preponderates over, that on the other side. -People v. Miller, 171 Cal, 649, 154 Pac. 468.

"Public use," in section 1241, Code of Civi). Procedure, the statute contemplates is to be found by the court and not by a jury. San Joaquin & Kings River Canal & Irr. Co., 26 Cal. App. 274, 277, affirmed by Supreme Court, 26 Cal. App. 285, 147 Pac. 258.

"To enforce a liability created by law," as used in section 359 of the Code of Civil Procedure, means liabilities in the nature of penalties or forfeitures, only.-Whitten v. Dabney, 171 Cal. 621, 154 Pac. 312.

“Trade," operation of railroads, and especially of interurban railroads, is within the meaning of subdivision 9 of section 1870, Code of Civil Procedure.—Vallejo & Northern R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 Pac. 238.

8 13.

1. Acts not to be done on holidays-Construction.-A stipulation extending the time to propose a statement on motion for a new trial to a day which is a legal holiday operates to extend the time to the day following the holiday, and an order of court made on that day further extending the time is within time and effective to extend the time to the designated date.-Connell v. Higgins, 170 Cal. 541, 150 Pac. 769.

8 16.

1. Words and phrases-Construction of.When a word or phrase has been given a particular scope or meaning in one part or portion of a law, it must be given the same scope and meaning in other parts or portions of the law, particularly of the same section thereof.-Ransome-Crummey Co. v. Woodhams, 29 Cal. App. 356, 156 Pac. 62.

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