-

- allegata et probata.

§ 2808a. Fraud Where a party seeks relief on the ground of fraud perpetrated by another, he must not only allege, but must also prove, that he relied upon, and was innocently, on his part, misled by the fraudulent statements of the other party, and unless the evidence shows this, there is a failure of proof.190 Fraud must be proven by a preponderance of the evidence.191

Attempted allegations of fraud

§ 2808b. Fraud at election. at an election on the organization of a new county, which state no facts sufficient to constitute such fraud, are only of conclusions of law, and a special demurrer to such allegations is properly sustained.192

§ 2808c. Transfer in fraud of creditors-pleading. When a creditor attacks a transfer of property made by his debtor on the ground that it was made to defraud, hinder, or delay creditors, facts must be alleged showing that the conveyance was inade in such manner and under such circumstances as to have that effect. It must, therefore, appear that at the time the conveyance was made the debtor had not other property subject to execution out of which his debts could be satisfied.193 And where the attempt is made to set aside a conveyance on such grounds, it must appear from the complaint that at the time the action is commenced the debtor has not other property sufficient to satisfy his debts.194 It is not sufficient merely to characterize the conveyance as pretended and fraudulent, in the absence of averment of facts showing to the court how it was such.195 The fraudulent intent of the grantor is a fact necessary to be alleged in the complaint.196 An allegation that a certain deed was made "for the purpose of hindering, delaying, and defrauding the creditors" of the grantor, but stating considered. Fraud or error must be precisely pleaded, so that issue may be joined and the adversary be prepared. Fleischner v. Kubli, 20 Oreg. 328; 23 id. 51.

190 Pearce v. Buell, 22 Oreg. 29.

191 Keel v. Levy, 19 Oreg. 450; see & 2747, ante.

192 People v. County of Glenn, 100 Cal. 419; 38 Am. St. Rep. 305. 193 Deutsch v. Korsmeier, 59 Ind. 373; Pfeifer v. Snyder, 72 id. 78; Albertoni v. Branham, 80 Cal. 631; 13 Am. St. Rep. 200. 194 Id.; Sherman v. Hogland, 73 Ind. 472; see § 2567, ante.

195 Pehrson v. Hewitt, 79 Cal. 594.

196 Threlkel v. Scott, 89 Cal. 351; Bull v. Bray, id. 286; and see Bull v. Ford, 66 id. 176.

no other facts indicating fraud, is held insufficient to sustain a decree, for the reason that it states only a conclusion.197 Mere general allegations imputing motives of fraud are not sufficient in any case. 198 In an action to set aside a fraudulent conveyance, an allegation in the complaint that the plaintiff had obtained a specific lien upon the property sought to be subjected to his judgment is unnecessary."

197 Leasure v. Forquer, 27 Oreg. 334.

198 Rowland v. Coleman, 45 Ga. 204; see § 2748, ante.

199 Klosterman v. Mason. Co., etc., R. R. Co., 8 Wash. St. 281.

CHAPTER V.

INJUNCTION.

§ 2809. For restoration of personal property threatened with destruction, and for an injunction.

[TITLE.]

Form No. 641.

The plaintiff complains, and alleges:

I. That he is, and at all times hereinafter mentioned was, the owner of [a portrait of his father, or other relative], and of which no duplicate exists [or state any facts showing that the property is of a kind that can not be replaced by money]. II. That on the ... day of deposited the same for safe-keeping with the defendant.

III. That on the

........

....

.. day of ...

18.., he

18.., he

demanded the same from the defendant, and offered to pay all reasonable charges for the storage of the same.

IV. That the defendant refuses to deliver the same to the plaintiff, and threatens to conceal, dispose of, cut, or injure the same, if required to deliver it up.

V. That no pecuniary damages would be an adequate compensation to the plaintiff for the loss of the said [painting]. Wherefore the plaintiff demands judgment:

1. That the defendant be restrained by injunction from disposing of, injuring, or concealing the said [painting].

2. That he return the same to the plaintiff.1

§ 2810. For an injunction restraining waste and injury. Form No. 642.

[TITLE.]

The plaintiff complains, and alleges:

I. That he is the owner in fee of [describe the property]. II. That the defendant is in possession of the same, under a lease from the plaintiff, a copy of which is hereto attached, marked "A," and made part hereof.

III. That the defendant has [cut down a number of valuable trees, and threatens to cut down many more, for the purpose of

1 For cases when injunction will and when it will not be allowed see Cal. Civil Code, §§ 3422, 3423.

sale], in violation of the terms of said lease, and without the consent of the plaintiff.

Wherefore the plaintiff demands judgment, that the defendant be restrained by injunction from committing or permitting any further waste on said premises. [Pecuniary damages might also be demanded.]

§ 2811. Against waste and injury, when lies. In an action brought by the state to procure the cancellation of a patent for land sold without authority of law, where the person claiming under the patent is engaged in removing mineral from the land, the state is entitled to an injunction restraining the defendant from removing the same.2 Cutting, destroying, and removing timber is sufficient ground for an injunction, without any allegations of insolvency.

And the same is true as to the destruction

of fruit trees. But in a bill for partition among tenants in common, and for injunction against cutting timber trees, it was held that defendants, being tenants in common, had the right to the enjoyment of the common estate, and to cut timber or use or dispose of it, at least to an extent corresponding to their share of the estate; and that as the complaint neither avers the insolvency of defendants, nor that they are exceeding their share, injunction does not lie."

§ 2812. Ejectment. At common law, an injunction can not be allowed against waste, etc., in an action of ejectment. So held under the English statute, which resembles ours in this respect. An injunction will not be allowed against a judgment in ejectment on grounds which might have been set up as a defense in the action at law.

§ 2813. Forcible entry and detainer. Where the complaint avers title in plaintiff to a tract of land; that the possession of defendants is forcible and unlawful; that an action for forcible entry has been commenced by plaintiff against defendants, and ⚫

2 People v. Morrill, 26 Cal. 352.

3 Buckelew v. Estell, 5 Cal. 108; Henshaw v. Clark and 103 Chinamen, 14 id. 460; see § 2540, ante.

4 Silva v. Garcia, 65 Cal. 591.

5 Hihn v. Peck, 18 Cal. 640.

6 Baylis v. LeGros, 2 C. B. (N. S.) 322; 40 Eng. L. & Eq. 272; Storm v. Mann, 4 Johns. Ch. 21; Davenport v. Davenport, 7 Hare, 217; see People v. The Mayor, 10 Abb. Pr. 111.

7 Agard v. Valencia, 39 Cal. 292.

is still pending and undetermined; and asks for an injunction to restrain defendants from cutting and removing timber from the land, without seeking in this suit to be restored to the possession, the object of the suit being to preserve the property during the pendency of that action; it was held that injunction lies, although no action at law has been brought to try the title; that the jurisdiction of equity in such cases, to grant first a temporary and subsequently a perpetual injunction, does not depend upon the question whether or not such action at law has been brought; that the rule under the English chancery system was the same, and that our statute is not more restrictive.8

§ 2814. Homestead, sale of. An injunction will be granted restraining the sale of a homestead claimed under the laws of the United States, if the judgment on which the execution issues was recovered for a debt contracted before the homestead claim was patented.9

§ 2815. Parties. An injunction will be granted, at the suit of the mortgagee of real property, to restrain the commission of waste upon the mortgaged premises; but before it is granted, it must be made to appear that the commission of the threatened waste will materially impair the value of the mortgaged property, so as to render it inadequate security for the mortgaged debt, and that the defendants are insolvent or unable to respond in damages for the threatened injury.10 So a mortgagor in possession may be restrained from waste.11 But the mortgagee of a lot on which a house is standing can not enjoin the mortgagor or his assigns from removing the house from the lot, except upon proof that the lot without the house will be an in

8 Hicks v. Michael, 15 Cal. 107; see 27 id. 643. Ordinarily, an injunction will not be granted in cases of disputed right, until the question of right is settled at law. Gilroy's Appeal, 100 Penn. St. 5.

9 Miller v. Little, 47 Cal. 348. A complaint setting out facts showing that a cloud upon the title to property was threatened by an execution sale of the plaintiff's homestead, and would be accomplished unless an injunction issued, sets up facts showing threatened irreparable injury, for which an injunction will be granted. Roth v. Insley, 86 Cal. 134; and see, also, Irwin v. Lewis, 50 Miss. 363; Ketchin v. McCarley, 26 S. C. 1; 4 Am. St. Rep. 674. 10 Robinson v. Russell, 24 Cal. 473; see, also, Cal. Code Civ. Pro., § 745, and Civil Code, § 2929.

11 Hawley v. Clowes, 2 Johns. Ch. 148; Sullivan v. Rabb, 86 Ala.