54 Cal. 628, 6,812, McFadden v. Mitchell

Docket Nº:6,812
Citation:54 Cal. 628
Opinion Judge:McKEE, Judge
Party Name:McFADDEN v. MITCHELL
Attorney:Brunson & Wells, and Bicknell & White, for Appellant. Thom & Stephens, for Respondent.
Judge Panel:JUDGES: Department No. 1, McKee, J. McKinstry, P. J., and Thornton, J., concurred.
Case Date:April 01, 1880
Court:Supreme Court of California

Page 628

54 Cal. 628

McFADDEN

v.

MITCHELL

No. 6,812

Supreme Court of California

April, 1880

Appeal from a judgment for the defendant, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.

The complaint contains the usual allegations in an action for the recovery of personal property. The defendant is Sheriff of Los Angeles County, and his answer, besides denying the several allegations of the complaint, justifies the taking under an execution, placed in his hands, against one Gabriel Allen, and alleges that the property was, at the time of the levy and ever afterward, the property of Allen. The plaintiff deraigns title under a bill of sale made to him by Allen, in Sonora, (Mexico) where the cattle then were. The cattle were brought to Los Angeles by the plaintiff's agent, and were there levied upon by the defendant.

COUNSEL:

Brunson & Wells, and Bicknell & White, for Appellant.

Inadequacy of consideration is not of itself sufficient, even as against creditors of an insolvent assignor, to authorize a Court to find fraud as a conclusion of law; and the Court erred in instructing the jury to the contrary. ( Civ. Code, § 3442; Hyde v. Chapman , 33 Wis. 393; Jamison v. King , 50 Cal. 132; Harris v. Burns, Id. 140; Thornton v. Hook , 36 Id. 223.)

Thom & Stephens, for Respondent.

If there was no good or valuable consideration, the transfer was void. (Bump Fraud. Con. 230; Lee v. Figg , 37 Cal. 336.) An inadequate consideration is a badge of fraud, and is not sufficient to support a transfer, where good faith is otherwise impeached. (Kaine v. Weigley , 22 Pa. St. 179.) A debtor may prefer a creditor, but the property must bear a reasonable proportion to the preferred debt. (Bump Fraud. Con. 223-4; Kahn v. McElrath, 6 Watts, 151; Robinson v. Stewart , 10 N.Y. 189.)

JUDGES: Department No. 1, McKee, J. McKinstry, P. J., and Thornton, J., concurred.

OPINION

McKEE, Judge

Page 629

It was error in the Court below to instruct the jury as follows: " If you find from the evidence that there was no good or valuable consideration from McFadden to Allen for the alleged transfer of the cattle, then you are instructed that such transfer was, and is, void as against the creditors of Allen."

By § 3442 of the Civil Code it is declared that the question...

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12 practice notes
  • 89 Cal. 643, 13208, Golden State &Amp; Miners' Iron Works v. Angell
    • United States
    • California Supreme Court of California
    • 29 Junio 1891
    ...and the mere inadequacy of the amount of the consideration will not invalidate the contract. (Civ. Code, sec. 3442; McFadden v. Mitchell , 54 Cal. 629; Hinds v. Holdship, 2 Watts, 104; 26 Am. Dec. 107; Wharton on Contracts, sec. 516.) David Bixler, also for Respondent. This is an action in ......
  • 30 N.E. 952 (Ind. 1892), 16,358, Hutchinson v. The First National Bank of Michigan City
    • United States
    • Indiana Supreme Court of Indiana
    • 7 Abril 1892
    ...by an insolvent debtor is not necessarily fraudulent and void as to creditors. Jamison v. King, 50 Cal. 132; McFadden v. Mitchell, 54 Cal. 628; Bull v. Bray, ante, p. 286. Hence it follows that the fraudulent intent is a fact necessary to be alleged in the complaint." This position is ......
  • 49 Cal.App. 764, Civ. 3460, Commercial National Bank of Los Angeles v. Roberts
    • United States
    • California California Court of Appeals
    • 10 Noviembre 1920
    ...fact on which the appellate court Page 770 is bound by the determination of the trial court. ( Civ. Code, sec. 3442; McFadden v. Mitchell, 54 Cal. 628; Sukeforth v. Lord, 87 Cal. 399, [25 P. 497]; Rossen v. Villanueva et al., 175 Cal. 632, [166 P. 1004] .) Mrs. Roberts testified that she ha......
  • 84 N.W. 746 (Minn. 1901), 12,274, Carson v. Hawley
    • United States
    • Minnesota Supreme Court of Minnesota
    • 8 Enero 1901
    ...consideration is not per se fraudulent unless so gross as to shock the moral sense. Jaeger v. Kelley, 52 N.Y. 274; McFadden v. Mitchell, 54 Cal. 628; Shay v. Wheeler, 69 Mich. 254; Mathews v. Reinhardt, 149 Ill. 635; Bierne v. Ray, 37 W.Va. 571; Fuller v. Brewster, 53 Md. 358; Motley v. Saw......
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12 cases
  • 89 Cal. 643, 13208, Golden State &Amp; Miners' Iron Works v. Angell
    • United States
    • California Supreme Court of California
    • 29 Junio 1891
    ...and the mere inadequacy of the amount of the consideration will not invalidate the contract. (Civ. Code, sec. 3442; McFadden v. Mitchell , 54 Cal. 629; Hinds v. Holdship, 2 Watts, 104; 26 Am. Dec. 107; Wharton on Contracts, sec. 516.) David Bixler, also for Respondent. This is an action in ......
  • 30 N.E. 952 (Ind. 1892), 16,358, Hutchinson v. The First National Bank of Michigan City
    • United States
    • Indiana Supreme Court of Indiana
    • 7 Abril 1892
    ...by an insolvent debtor is not necessarily fraudulent and void as to creditors. Jamison v. King, 50 Cal. 132; McFadden v. Mitchell, 54 Cal. 628; Bull v. Bray, ante, p. 286. Hence it follows that the fraudulent intent is a fact necessary to be alleged in the complaint." This position is ......
  • 49 Cal.App. 764, Civ. 3460, Commercial National Bank of Los Angeles v. Roberts
    • United States
    • California California Court of Appeals
    • 10 Noviembre 1920
    ...fact on which the appellate court Page 770 is bound by the determination of the trial court. ( Civ. Code, sec. 3442; McFadden v. Mitchell, 54 Cal. 628; Sukeforth v. Lord, 87 Cal. 399, [25 P. 497]; Rossen v. Villanueva et al., 175 Cal. 632, [166 P. 1004] .) Mrs. Roberts testified that she ha......
  • 84 N.W. 746 (Minn. 1901), 12,274, Carson v. Hawley
    • United States
    • Minnesota Supreme Court of Minnesota
    • 8 Enero 1901
    ...consideration is not per se fraudulent unless so gross as to shock the moral sense. Jaeger v. Kelley, 52 N.Y. 274; McFadden v. Mitchell, 54 Cal. 628; Shay v. Wheeler, 69 Mich. 254; Mathews v. Reinhardt, 149 Ill. 635; Bierne v. Ray, 37 W.Va. 571; Fuller v. Brewster, 53 Md. 358; Motley v. Saw......
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