Rossen v. Villanueva

SLOSS, J. The plaintiff, Rossen, and the defendant, Villanueva, had been partners in the bottling business at San Bernardino. On April 4, 1913, the plaintiff sold his one-half interest in the property and business of the partnership to the defendants, Seward and Owens, who thereafter, together with Villanueva, conducted the business under the name of Ranier Bottling Company. During the existence of the partnership between plaintiff and Villanueva the plaintiff had contributed a larger amount to the capital of the business than had Villanueva, and plaintiff had a claim against said Villanueva for one-half of the excess thus contributed by him. On or about March 1st, Villanueva sold his interest in the partnership to Seward and Owens. On March 21, 1914, the plaintiff recovered a judgment against Villanueva for $592.46 on account of the claim above referred to. Execution on said judgment was issued and returned unsatisfied. The complaint alleged that Villanueva’s sale and transfer of his interest in the partnership to Seward and Owens had been made with the intent and purpose of defrauding plaintiff of the money so due him, and of preventing him from collecting the same, and that said Seward and Owens participated in said fraudulent intent, and took the transfer with the intent and purpose of assisting and aiding said Villanueva in evading payment of said indebtedness, and preventing plaintiff from collecting the same. It was further alleged that after said sale Villanueva had no property out of which his indebtedness to the plaintiff could be satisfied in whole *634 or in part. The prayer was for judgment that the transfer to Seward and Owens be canceled and declared void, and that an alias execution be issued in the former action of Rossen v. Villanueva, empowering the sheriff to sell the said partnership interest of Villanueva. The court found the foregoing facts in favor of the plaintiff, and rendered judgment for him as prayed The defendants, Seward and Owens, appeal from the judgment. The complaint contains, in addition to the averments which we have summarized, a number of additional allegations, which were found by the court to be true. There is no occasion to recite their purport, or to discuss the sufficiency of the evidence to support the findings in their favor. The facts which we have stated are sufficient in themselves to entitle the plaintiff to relief. Under section 3439 of the Civil Code, every transfer of property made with intent to delay or defraud any creditor or other person of his demands is void against all creditors of the debtor. Under section 3442 of the same code, the question of fraudulent intent is one of fact and not of law. A creditor may attach a transfer as fraudulent when he has reduced his claim to judgment, and has endeavored without avail to collect the same by execution. (Thornburgh v. Hand, 7 Cal. 554; Bickerstaff v. Doub, 19 Cal. 109, [79 Am. Dec. 204]; Mesmer v. Jenkins, 61 Cal. 151; Brown v. Campbell, 100 Cal. 635, [38 Am. St. Rep. 314, 35 Pac. 433].) This the plaintiff did here. He was not required to show that he had any specific lien, independent of the judgment, upon the property transferred by his debtor. Nor is it a prerequisite to the creditor’s right that the judgment obtained by him shall have become final by affirmance on appeal, or by the lapse of the time in which an appeal might have been taken. “If he has put himself in a position to levy execution, he has done everything necessary to enable him to attack the transfer which hinders his enjoyment of his right.” (Sewell v. Price, 164 Cal. 265, 270, [128 Pac. 407]; Jenner v. Murphy, 6 Cal. App. 434, [92 Pac. 405].) It is familiar law that a pleading which merely alleges in general terms that an act was fraudulently done will not be held good. Fraud, for purposes of pleading, is a legal conclusion. But the intent “to delay or defraud” a creditor is a question of fact (Civ. Code, sec. 3442), and may be pleaded *635 in so many words, without stating the evidence or the specific facts which go to substantiate the charge. (20 Cyc. 736; Threlkel v. Scott, 4 Cal. Unrep. 346, [34 Pac. 851]; Anderson v. Bank of Lassen County, 140 Cal. 695, [74 Pac. 287].) Where the transferee participates in the fraudulent intent, the transfer is void as to creditors, even though a valuable consideration may have been paid. (Goodwin v. Hammond, 13 Cal. 168, [73 Am. Dec. 574]; Swinford v. Rogers, 23 Cal. 234; Bull v. Ford, 66 Cal. 176, [4 Pac. 1175]; Burke v. Koch, 75 Cal. 356, [17 Pac. 228].) Here it is alleged and found that Seward and Owens took the transfer with the intent and purpose of assisting and aiding Villanueva in evading payment of his indebtedness to plaintiff. The only question is whether the evidence supports the findings of a fraudulent intent on the part of Villanueva and of the appellants here. There was evidence tending to show that when the plaintiff, Rossen, sold his interest to the defendants, he advised them that he still retained a claim against Villanueva. The amount of this claim was in dispute, and the plaintiff and Villanueva finally agreed to submit it to the decision of a referee. On February 26, 1914, the referee made his findings and decision, fixing the indebtedness of Villanueva to Rossen at $547.16. From that date until the 5th of March following, Rossen made daily efforts to find Villanueva, but did not succeed in locating him. During this time both Seward and Owens knew that plaintiff was trying to collect his claim from Villanueva. The evidence warrants the inference that Villanueva was concealing himself from Rossen. In response to plaintiff’s repeated inquiries, Seward told him during this time that he did not know where Villanueva was. Seward had authorized the plaintiff to purchase Villanueva’s interest on behalf of Seward and Owens for one thousand seven hundred dollars. On the 2d of March Seward and Owens bought Villanueva’s interest from him for nine hundred dollars, they agreeing to assume the indebtedness of the firm. The transaction was conducted at Colton, instead of San Bernardino, where the business was located. On the 4th of March, two days after the appellants had made this purchase, Rossen told Seward that he had heard that a sale had been made in Colton of Villanueva’s interest, and Seward said, in response to this, that he knew nothing about it. Seward, in testifying, ad *636 mitted this, his explanation being that he did not “have to tell all his business. ’ ’ Owens, who closed the transaction with Villanueva, carried to Colton the amount of the purchase price in currency, and paid it in that form, although he, and Seward had a bank account and were in the habit of paying their larger bills by check. When Rossen asked Owens how much he had paid Villanueva, Owens answered that it was none of his business. Villanueva has not been seen by any of the parties concerned since this money was paid to him. No extended argument is needed to demonstrate that the findings assailed are fully supported. The facts speak for themselves. The debtor’s concealment, his subsequent disappearance, the unusual mode in which the appellants made their purchase (20 Cyc. 451), the secrecy surrounding the transaction (20 Cyc. 447; Daugherty v. Daugherty, 104 Cal. 221, [37 Pac. 889]; Bush & M. Co. v. Helbing, 134 Cal. 676, [66 Pac. 967]), the disingenuous conduct of the appellants and their active efforts to hide from the plaintiff the fact of their purchase (20 Cyc. 446), all these are badges of fraud so convincing that it may well be doubted whether findings in favor of the defendants could have been sustained. We may add that the evidence justifies the inference that the consideration paid was considerably less than the full value. The defendants had offered, a few days before their purchase, to pay one thousand seven hundred dollars for Villanueva’s interest, and the court was justified in treating this as evidence of value. The purchase for an inadequate consideration is an additional circumstance tending to show fraudulent intent. The judgment is affirmed. Shaw, J., and Victor E. Shaw, J., pro tem., concurred.