Lawton v. Gordon

By the Court, Sawyeb, J.: This is an action to cancel certain deeds. The plaintiffs allege that one Barron owned an interest in certain mining claims, and being “ fearful that one James Vaughn, and other persons,” creditors of Barron, would attach the same, on the 5th of July, 1864, executed and delivered a conveyance of the same to one Reed, without consideration, and for the purpose of defrauding said creditors; and that said Reed took said conveyance with a like purpose, and filed it for record, but, before it was actually copied into the records, withdrew the same, and returned it to said Barron, who delivered it to one Briggs to keep ; and that the same was so withdrawn and delivered to Barron with intent to cancel the same; that on the 20th of September, 1864, after the said deed was so withdrawn from the Recorder’s office, and [38]delivered to said Barron, said Barron conveyed to one Reichling, by deed dated and recorded on that day, who. subsequently conveyed to plaintiff; that subsequently said Reed conveyed to other parties, who procured said deed from Barron to Reed from said Briggs, and caused it to be recorded as of the date of the original filing; that the interest so conveyed had vested in the defendants, and that all the grantees from Reed took their said several conveyances with knowledge of the facts before stated. Plaintiffs ask that the said several deeds from Barron to Reed, and the grantees of the latter, be declared void and canceled. The foregoing statement embraces the substance of all the material allegations.

At the hearing the Court dismissed the complaint for want of equity, and plaintiffs appeal.

Reichling does not appear to have been a creditor. At all events, he has not stated a case which entitles Mm to impeach the conveyance from Barron to Reed on the ground of fraud. The conveyance from Barron to Reed was valid between the parties and all the world except creditors. The delivery of the deed passed the title, and the redelivery to the grantor, under the circumstances, did not invalidate the conveyance, or revest the title in Barron. (Bowman v. Cudworth, 31 Cal. 149; Killey v. Wilson, 33 Cal. 690; Kearsing v. Kilian, 18 Cal. 493.) The title, then, is in Reed’s grantees, unless Reichling or his grantees took the title as subsequent purchasers, in good faith, for a valuable consideration, under the twenty-sixth section of the Act concerning conveyances. They cannot be purchasers in good faith unless they took without notice of the conveyance to Reed. (Landers v. Bolton, 26 Cal. 419; Galland v. Jackman, 26 Cal. 87; Colton v. Seavey, 22 Cal. 497.) There is no averment in the complaint that plaintiffs, or their grantors, had no notice of the conveyance from Barron to Reed. This is an essential averment; for without such averment it does not appear that they are bona fide purchasers.