Horn v. Volcano Water Co.

Citations

• 13 Cal. 62

Syllabus

<p>A copy of the note sued on being attached to, and made part of, the complaint, the answer, not verified, admits the genuineness and due execution of the note, and entitles the plaintiff to judgment.</p> <p>In suit on a note and mortgage, where creditors of the defendant intervened, alleging the note and mortgage to be fraudulent as against them, the interveners cannot prevent a judgment for plaintiff against defendant. The most they can claim, is protection against the enforcement of the judgment to their prejudice. The interest which entitles a person to intervene in a suit between other parties, must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.</p> <p>It must be that created by a claim to the demand, or some part thereof, in suit, or a claim to, or lien upon, the property, or some part thereof, which is the subject of litigation.</p> <p>A simple contract creditor of a common debtor cannot intervene in a foreclosure suit.</p> <p>But judgment creditors, being, as such, subsequent incumbrancers, may intervene. And a Court may order thorn to be made parties, probably by an amendment of the complaint as the better course, or on petition of intervention.</p> <p>Subsequent creditors cannot complain, that the note and mortgage of a common debtor were executed without consideration.</p> <p>As against subsequent creditors a conveyance, even if voluntary, is not void, unless fraudulent in fact—that is, made with the view to future debts ; though the evidence of an intent to defraud existing creditors is deemed sufficient prima facie evidence of fraud against subsequent creditors..</p>