First National Bank of Los Angeles v. Maxwell

Citations

• 123 Cal. 360
• 55 P. 980

Syllabus

<p>Findings—Admission of Pleadings—A finding need not be made of any fact alleged in the complaint and not denied in the answer.</p> <p>Fraudulent Conveyance—Trust—Mortgage of Other Property — Deficiency Judgment—Estoppel—Waiver.—After a conveyance in trust had been executed by a debtor, in violation of a promise to a creditor not to convey any property, or to change its situation, in consideration of an agreed delay by the creditor to commence legal proceedings to enforce the debt, the subsequent acceptance of a mortgage by the creditor upon other property, to secure a note made payable one year after date, does -not estop the creditor, after foreclosure of the mortgage, and the docketing of a deficiency judgment from assailing the conveyance in trust as having been made with intent to defraud creditors, nor does it constitute a waiver of the right of such creditor to attack it as a fraudulent conveyance.</p> <p>Id.—Beliance upon Conduct of Person Estopped.—It is an essential element of estoppel by conduct, that the party claiming the estoppel should have relied upon the conduct of the other, and was induced by it to do something which he otherwise would not have done.</p> <p>Id.—Waiver—Intentional Relinquishment of Known Right.— A waiver is the intentional relinquishment of a known right; and in order to constitute or establish a waiver by subsequent consent to or ratification of a fraudulent conveyance by the debtor, there must be a clear, unequivocal and decisive act of the creditor showing a purpose to abandon or waive the legal right to assail such conveyance, or acts amounting to an estoppel on his part.</p> <p>Id.—Acceptance of Mortgage—Suspension of Remedy.—The suspension of remedy in favor of the creditor, by the taking of mortgage security for the debt, operating to suspend the right of proceeding against the property fraudulently conveyed, or any other property of the creditor, until the mortgaged property should be exhausted and a deficiency judgment do