Albertoli v. Branham

Works, J. The only question presented by the appeal is, whether the answer of the defendant and the findings of the court show that the conveyance of the property in controversy to the plaintiff was fraudulent as against the creditors of his grantor. The answer alleges; “Defendant further alleges, upon and according to his information and belief, that heretofore, to wit, on the fourth day of July, 1885, Serefino Albertini, herein-before mentioned, was the owner and in possession of all the property sued for in this action, described in the complaint herein; and that he was then justly indebted to divers persons in large sums of money, and, among them, to Attilio Agustini, to whom he was indebted in the sum of $387.85, and to whom he is now justly indebted in a large amount, to wit, in the sum of $955.94, the judgment hereinbefore mentioned and referred to; that the plaintiff herein and the said Serefino Albertini, with a full knowledge of said indebtedness of said Albertini to said Attilio Agustini and others, thereafter, and on or about the eighteenth day of July, 1885, for the purpose of hindering, delaying, and defrauding the said Attilio Agustini and the other creditors of said Serefino Albertini in the collection and recovery of their just debts and claims against the said Albertini, made a pretended sale and transfer of the whole of said personal property (seized as aforesaid) from said Albertini to the plaintiff herein; that at the time of said transfer said plaintiff knew that said Albertini was insolvent; and defendant avers that said transfer was made with the [633]intent on the part of plaintiff and said Albertini to hinder, delay, and defraud the said creditors of said Albertini, including said Attilio Agustini; and he further avers that said Serefino Albertini, at the time of said pretended sale and transfer to the plaintiff herein, had the possession and control of all of said personal property seized by defendant as aforesaid; and he avers' that said sale and transfer was not accompanied by an immediate delivery of said property, nor followed by an actual or continued change of possession thereof.” The court found on this issue as follows: “That on said eighteenth day of July, 1885, said Serefino Albertini made a sale to the plaintiff of his said leasehold interest, and of his right and title to all said property sued for in this action, except said ninety-six cheeses herein, and then and there delivered said property so sold to the plaintiff herein, all of which was situated on said leased lands; that said sale was made with the intent to hinder, delay, and defraud the creditors of said Albertini on the part of both of said parties thereto, and especially to hinder, delay, and defraud the said Attilio Agustini and those who assigned their demands to him, as hereinbefore stated; that said sale involved and comprehended all the property of said Albertini, and left him without any visible property.” It is contended by the appellant that the answer stated nothing more than the conclusion that the conveyance was made to hinder and defraud creditors, and not the facts constituting such fraud. It is well settled that in pleading fraud it is not sufficient to allege it in general terms, and that the facts constituting the fraud must be stated. (Pehrson v. Hewitt, 79 Cal. 594; City of Oakland v. Carpentier, 21 Cal. 642; Castle v. Bader, 23 Cal. 76.) The only fact alleged in the answer sufficient to avoid the transfer was, that the sale “ was not accompanied by an immediate delivery of said property, nor followed by an actual or continued change of possession thereof,” and the findings do not support this allegation. Where