Lee v. Figg

By the Court, Sawyer, C. J.: Appellant’s first point seems to be in the nature of a demurrer' to the answer, on the ground that the facts stated are insufficient to constitute a defense. ÍTo demurrer appears to have been filed, and the point seems to be made here for the first time. There is not an entire absence of allegations [336] of fraud in the transfer from Barton Lee to Ogden. There is an attempt to allege a transfer for the purpose of defrauding creditors of Lee, and if there is any objection to the pleadings it'is that the allegation is defective. The point was fully litigated on the trial, and in such case the judgment will not be reversed upon the point taken here for the first time. (Practice Act, Sec. 71; King v. Davis, 34 Cal. 100.) But we think the answer sufficient. It avers that the conveyance to Ogden was without consideration, and this is sufficient to avoid it as to creditors of Lee, whether Ogden was aware of the fraudulent purpose of Lee and actively aided it or not. He was not a purchaser in good faith. The judgment by confession in the case of Henley & Hastings v. Barton Lee, rendered in 1851, is not a nullity on its face, in consequence of the defects in the statement. The Court had jurisdiction of the subject matter and the parties, however irregular or erroneous it may be, and it cannot be called in question in a collateral proceeding. It was entered in open Court and regularly signed by the Judge, as was the practice under the code of 1850. (Cloud v. El Dorado Co., 12 Cal. 133; Arrington v. Sherry, 5 Cal. 513.) The judgment is good as between Henley & Hastings and Barton Lee, and was only subject to be attacked for fraud by creditors of Lee, who were defrauded thereby, and that in some direct proceeding before a sale of the property under it to innocent parties. (Miller v. Earle, 24 N. Y. 111.) In this case the-parties seeking to attack the judgment collaterally, are not creditors of Lee, and they seek to avoid a sale under it of property which has long since passed into the hands of innocent purchasers. The cases of Richards v. McMillan, 6 Cal. 419; Cordier v. Schloss et al., 12 Cal. 143, same case 18 Cal. 576, and Wilcoxson v. Burton, 27 Cal. 229, were all direct proceedings by creditors to vacate the judgments themselves on the ground of fraud, and the question was, not whether the several judgments were absolute nullities upon their face, but what was their value as evidence on the issue of fraud raised in the proceedings to impeach them ? Or, what was [337] •the prima fade presumption arising on the face of the record from a failure to state fully the facts required by the statute with respect to the issue of fraud raised by the creditors, who claimed that they had been defrauded ? The Court held lit to afford prima fade evidence of fraud, but that it was ¡admissible to support this judgment by evidence showing ¡that the transaction was bona fide and the judgment rendered upon an indebtedness really due. This necessarily assumes •that the judgment is valid till vacated upon a direct proceeding for the pui’pose. The case of Chapin v. Thompson, 20 Cal. 681, cited by appellant, affords him no aid. It will be found that the case in no respect touches the question. We think the averments of the issuing of process and sale •thereunder, under the Hastings & Henley judgment against Lee, are not sufficiently denied to require the execution to be put in evidence. The denial is rather of the effect of the facts averred than the facts themselves. The whole theory ¡of the defense on this point is that the judgment is void upon its face, and the denials are shaped according to this theory. Judgment and order affirmed, and remittitur ordered to issue forthwith.