Cooper v. Nolan

VAN DYKE, J.

This is an appeal from the judgment in an action to set aside as fraudulent a transfer of certain choses in action made by one W. S. Nolan to his brother, the defendant. The assignee in insolvency of said W. S. Nolan, by leave of court, filed a complaint in intervention. Findings and judgment went in favor of the intervener and against the defendant, from which judgment the appeal is taken upon the judgment-roll alone. It is alleged in the complaint in intervention, and found by the court, that the property transferred, or attempted to be transferred, by W. S. Nolan to his brother was without any consideration whatever, and was merely a fraudulent pretense; that said W. S. Nolan was not indebted to said defendant in any sum of money whatever, •or under any obligations to him; that said fraudulent transfer was made secretly and out of the usual course of business, and said property was taken and received by the defendant with full knowledge in him of the intent to hinder and defraud the creditors of said W. S. Nolan; and that said defendant had received from the collection of accounts and choses in action so assigned to him the sum of $4,933.25. The decree based upon said findings adjudged the defendant guilty of fraud in that he received from said accounts and choses in action the said sum, and he was directed forthwith to pay to the intervener, assignee in insolvency of the estate of W. S. Nolan, the said sum, with interest thereon at the rate of seven per cent per annum until the same be paid, and costs

[250]

of suit; “and the sheriff of the city and county of San Francisco is hereby ordered to arrest said defendant, E. J. Nolan, forthwith because of said fraud, and hold and retain said defendant under arrest in the county jail of the city and county of San Francisco, state of California, until he shall have paid to the intervener the sum of $4,933.25, or until the further order of this court.”

Appellant contends that the complaint is insufficient. Conceding that it would have been subject to a special demurrer upon some particular grounds, yet it will stand against the general demurrer here interposed.

The facts alleged and found render the transaction in question absolutely void, and the property so transferred in the hands of the defendant may be recovered by the assignee in insolvency and applied towards the payment of the creditors of W. S. Nolan, the debtor, as was decreed in this case. “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.” (Civ. Code, sec. 3439.)