Davis v. Drew

Citations

• 58 Cal. 152

Syllabus

<p>Findings.—The paragraphs of the answer containing denials were numbered I, 2, 3, and 4, and those containing affirmative matter 1, 2, 3, 4, and 5, and the court—after finding upon the issues made by the denials—found that the allegations contained in paragraphs 1, 2, 3, 4, and 5 of the answer were true.</p> <p>Held: Though this mode of finding facts by reference to the answer is not to be commended, yet under former decisions of the court it is sufficient.</p> <p>Fraud as to Creditors—Execution Sale—Delivery and Change of Possession—Declarations—Res Gestae—Evidence.—In an action for the conversion of personal property, the defendant justified the taking under execution against N. & J., and alleged that the claim of the plaintiff to the goods in question was based upon a judgment confessed by J. for the purpose of defrauding creditors, and an execution sale thereunder made for the like purpose, and that there was no immediate delivery of the goods or change of possession. On the trial evidence was admitted as to declarations of J. made before the sale, and while on his way to San Francisco, to the effect that he had a friend in that city with whom he had made arrangements to buy the property.</p> <p>Held: The declarations were material and relevant to the issue of fraud, and were connected with the alleged fraudulent transaction, and formed part of it.</p> <p>The facts alleged as to the lack of delivery and change of possession were relied on as an element in the actual fraud averred, and were admissible evidence upon that issue, and it is therefore unnecessary to decide whether judicial sales and sales under legal process are within, the provision of the Statute of Frauds (Civ. Code, § 3439), which requires a delivery and change of possession.</p>