Millard v. Epsteen

SPENCE, J.

Plaintiff sought to set aside an alleged fraudulent conveyance from Anne E. Stolz to defendant Mildred L. Epsteen. Said defendant filed an answer denying practically all of the material allegations of the complaint and also filed a cross-complaint to quiet title. The trial court found in favor of said defendant and cross-complainant upon the material issues made by the pleadings and entered its judgment accordingly. Plaintiff appeals from said judgment.

Plaintiff’s complaint was apparently drawn upon the theory that the conveyance was void under the provisions of both sections 3439 and 3442 of the Civil Code as said sections read prior to their repeal in 1939.

Section 3439 then read: “Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. ’ ’

Section 3442 then read: “In all cases arising under section twelve hundred and twenty-seven, or under the provisions of

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this title, except as otherwise provided in section thirty-four hundred and forty, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge he adjudged fraudulent solely on the ground that it was not made for a valuable consideration; provided, however, that any transfer or encumbrance of property made or given voluntarily, or without a valuable consideration, by a party while insolvent or in contemplation of insolvency, shall be fraudulent, and void as to existing creditors.”

The distinction between the provisions of the two sections has been indicated in numerous eases.

(Vogel

v.

Sheridan,

4 Cal.App.2d 298 [40 P.2d 946];

Allee