selling the whole or any part of said property, in satisfaction of his or their debt or debts and demands. 8. That the said real estate can not be sold for a sum more than about one-half of the plaintiff's said judgment, and that the defendant W. X. is a man of no pecuniary responsibility, and is possessed of no property other than that so bid in by him as aforesaid. Wherefore, the plaintiff demands judgment against the defendants: That the said judgment in favor of the said Y. Z. against the said W. X., and the proceedings and sale under it, including the sheriff's said certificate of sale, be set aside, vacated, and declared null and void [etc.]. Defendant answers to plaintiff's complaint [or petition]: Denies that execution upon the said judgment was ever returned unsatisfied in whole or in part before the beginning of this action [etc.]. FORM No. 962-Denying possession of property belonging to the debtor. [Title of court and cause.] Defendant answers to plaintiff's complaint [or petition]: Denies that he had at the commencement of this action, or at any time since, any property of the defendant [debtor] in his pos session or under his control, as alleged, or at all. FORM No. 963-Averment in defense that defendant has assets. [Title of court and cause.] Defendant answers to plaintiff's complaint [or petition]: Alleges that the defendant [judgment debtor] has, and at the commencement of this action had, property in this county subject to execution, and sufficient to satisfy said judgment, to wit: [State what property.] FORM No. 964-Denial that conveyance was fraudulent. [Title of court and cause.] Defendant answers to plaintiff's complaint [or petition]: [After denials, aver:] That upon the making of the alleged assignment [or mortgage] there was an actual and continued change of the possession of the assigned [or mortgaged] property from the said [debtor] to the [transferees], who, immediately after the execution of the assignment [or mortgage] took actual and exclusive possession of the property; and that it has at all times since the assignment [or mortgage] remained in their exclusive protection and control. FORM No. 965-Defense that deed was made for a valuable consideration.Action to set aside alleged fraudulent conveyance. (In Lynch v. Sweetland, 8 Cal. App. 582; 97 Pac. 413.) [Title of court and cause.] [After introductory part and denials appropriate to this defense:] 7. Defendants aver that upon the 30th day of December, 1897, defendant William Sweetland was indebted to defendant Emma Sweetland for moneys had and received by the said William Sweetland from the said Emma Sweetland, which said moneys were the separate estate of the said Emma Sweetland, and which said moneys. so by the said William Sweetland received from the said Emma Sweetland were used by the said William Sweetland in the original purchase by the said William Sweetland of the said premises in said complaint described; that said purchase was made by the said William Sweetland from one Mrs. Catherine Dunne, on or about the 14th day of February, 1895; that at the time of the said conveyance from said William Sweetland to Emma Sweetland, there was a large sum of money still due for the purchase price thereof, and the said premises were then encumbered to secure the payment thereof; that since the making, execution, and delivery of said conveyance by the said William Sweetland to said Emma Sweetland, the said Emma Sweetland, with her own separate personal funds, money, and estate, has paid off said indebtedness, and the true consideration for the making, execution, and delivery of said conveyance from the said William Sweetland to the said Emma Sweetland was for moneys loaned by the said Emma Sweetland to the said William Sweetland, and the assuming by the said Emma Sweetland of the obligation and indebtedness for the balance of the purchase price for said premises, which said obligation and indebtedness the said Emma Sweetland assumed and paid, and the consideration for said conveyance was both good, valid, sufficient, and legal. 8. Defendants allege that immediately after the making, execu tion, and delivery of said deed of conveyance, namely, on or about the 30th day of December, 1897, the defendant Emma Sweetland took immediate, absolute, and exclusive possession, management, and control of all of the said property mentioned in said conveyance and in said complaint described, and she has ever since had, and now has, absolute and exclusive management, possession, and control of said property. 9. Defendants aver that said deed was not made solely, or at all, with the intent to defraud this plaintiff, or with intent to defraud any other person or persons [etc.]. Wherefore, defendants pray that plaintiff take nothing by his said action, and that they have judgment for costs herein expended. E. D. Crawford, and B. A. Herrington, Attorneys for defendants. § 405. JUDGMENTS [OR DECREES]. FORM No. 966—Confirming deed in action to set aside the same as an alleged fraudulent conveyance. (In Lynch v. Sweetland, 8 Cal. App. 582; 97 Pac. 413.) [Title of court and cause.] This cause came on regularly for trial on the 28th day of July, 1905, all parties being present and represented by counsel, and evidence was introduced for the respective parties, and the cause being thereafter, upon the 25th day of August, 1905, submitted for decision, and the court being fully advised, and having given and made its findings of fact and conclusions of law; now, upon motion of attorneys for defendants: It is ordered, adjudged, and decreed, and the court does now here order, adjudge, and decree, that the conveyance of the premises mentioned in plaintiff's complaint herein was made and executed upon the 30th day of December, 1897, and was delivered in the month of January, 1898, by defendant William Sweetland to defendant Emma Sweetland; that the same was made for a good and valuable consideration, and was not made with intent to defraud the plaintiff, and was not made with intent of defrauding any existing or subsequent creditor or creditors of said William Sweetland, and the same was and is in no wise fraudulent as to the above-named plaintiff. It is further ordered, adjudged, and decreed, that defendants have judgment for their costs herein, taxed at $ Dated this 23d day of February, 1906. M. H. Hyland, Judge of Superior Court. FORM No. 967-Following order sustaining demurrer to complaint and refusal to amend.-Action in the nature of a creditor's bill. (In Phillips v. Price, 153 Cal. 146; 94 Pac. 617.) The demurrer of the defendants to the plaintiff's complaint herein having been, on the 19th day of May, 1904, sustained by order of this court, and plaintiff herein having in open court declined to amend his complaint: It is hereby ordered and adjudged, that plaintiff herein take nothing by this action, and that this action be and the same is hereby dismissed, and that defendants herein recover their costs, taxed at $3.00. U. P. Unangst, Judge of Superior Court. Form of complaint in an action to set aside alleged fraudulent conveyance: Blanc Form of answer in an action to set aside a fraudulent conveyance: National Wall For substance of answer in an action for alleged conspiracy to cheat and defraud creditors, in which answer, after traversing the material allegations of the complaint, the defense was set up that the defendants became possessed of the property in question under a sale thereof as a pledge to secure a promissory note, in the manner required by law; also, a defense based upon a judgment pleaded by way of estoppel, and rendered in an action for an accounting between the parties, see Lane v. Tanner, 156 Cal. 135, 136, 103 Pac. 846. § 406. ANNOTATIONS.-Fraudulent transfers and assignments.-Creditors' suits. 1. General creditor.-Right to maintain action. 2. Exception to rule as to general creditor. 3, 4. Fraudulent intent.-Rule as to pleading. 5. Intent to hinder, delay, and defraud. 6. Proceeding by creditor's bill when other proceedings are inadequate. 1. General creditor.-Right to maintain action.-A general creditor may, without reducing his claim to judgment, proceed in equity to charge one holding the property of his debtor, received under a fraudulent assignment or transfer, as a trustee for the benefit of creditors: Barrie v. United Railways, 138 Mo. App. 557, 119 S. W. 1020, 1061, citing and quoting the rule laid down by Mr. Justice Brewer, then judge of the United States Circuit Court, in Clapp v. Dittman, 21 Fed. 15, quoting Case v. Beauregard, 101 U. S. 688, 25 L. ed. 1004. 2. Exception to rule as to general credItor. It is the general rule that a creditor must reduce his claim to a judgment before he can maintain an action to set aside a fraudulent conveyance. But to this rule there is a well-established exception: Where the defendant is a nonresident, a personal judgment can not be obtained against him, and therefore such action can be maintained without the creditor first having obtained a judgment: First National Bank v. Eastman, 144 Cal. 487, 77 Pac. 1043, 103 Am. St. Rep. 95, 1 Am. & Eng. Ann. Cas. 626; Taylor v. Branscombe, 74 Iowa 534, 38 N. W. 400; Pendleton v. Perkins, 49 Mo. 565; and cases cited in note to 1 Am. & Eng. Ann. Cas. 626, 630. 3. Fraudulent intent.Rule as to pleading. It is generally necessary in an action to set aside a fraudulent conveyance that there be an express allegation of fraudulent intent, although there is a line of authorities holding that an express allegation of fraud is unnecessary where the allegations of fact are such that only one inference can be drawn therefrom, namely, that the parties were moved with an actual fraudulent intent in doing the acts complained of: Byrne etc. D. G. Co. v. Willis-Dunn Co. (S. Dak.), 121 N. W. 620, 622, citing and reviewing the cases and distinguishing the authorities on this point. 4. Fraudulent intent in an action to set aside a fraudulent conveyance must be pleaded either directly or by the averment of facts from which such intent is conclusively presumed as a matter of was to hinder, delay, and defraud creditors is not sufficient: Meeker v. Harris. 19 Cal. 278, 289, 79 Am. Dec. 215. See King v. Davis, 34 Cal. 106; Lawrence v. Gayetty, 78 Cal. 126, 131, 20 Pac. 382, 12 Am. St. Rep. 29; People v. McKenna, 81 Cal. 158, 159, 22 Pac. 488; Spring Valley W. Works v. San Francisco, 82 Cal. 286, 321, 22 Pac. 910, 1046, 16 Am. St. Rep. 116, 6 L. R. A. 756. 6. Proceeding by creditor's bill when other proceedings are inadequate.-Proceedings supplementary to execution are not an adequate remedy when they can not in themselves, without the aid of an independent action, result in subjecting the property-whether tangible or a mere chose in action-to the payment of plaintiff's claim. Such condition exists wherever it appears that the person who is charged with holding property belonging to the judgment debtor, or with being indebted to him, claims title to the property or denies the deed. In such cases an action is necessary, and the plaintiff may proceed by creditor's bill without first pursuing statutory proceedings, which could not give him anything more than a right to sue: Phillips v. Price, 153 Cal. 146, 150, 94 Pac. 617. 7. A creditor's suit to reach assets of a street railway company, and brought to charge against such assets a judgment which plaintiff obtained against the company, in whose hands the assets formerly were, may be maintained whether the consideration was adequate, or whether no consideration whatever was paid, under the facts as disclosed: Barrie v. United Railroads, 138 Mo. App. 557, 119 S. W. 1020, 1048. 8. Assignment antedating judgment.— If an assignment for the benefit of creditors made by a corporation antedates a judgment against the corporation, such judgment does not become a lien upon the property, if the assignment was valid, and the assignee's deed under such assignment transferring the title is a complete defense to an action brought by persons claiming under a sheriff's deed: Lacy v. Gunn, 144 Cal. 511, 514, 78 Pac. 30. |