Kohner v. Ashenauer

Citations

• 17 Cal. 578

Syllabus

<p>In suit to foreclose a mortgage executed by the husband to plaintiff, the wife may be made defendant, if she claim the premises as her separate property by virtue °f a Previous conveyance from the huband to her.</p> <p>Query; Whether a complaint seeking to set aside a conveyance on an allegation that it was made voluntarily and without valuable consideration, and to hinder, delay, and defraud creditors, and particularly plaintiff, is demurrable, because of the generality of this allegation of fraud; and what degree of particularity in the statement of facts and circumstances is required when a fraudulent conveyance is alleged to have been made.</p> <p>Where in suit against husband and wife to foreclose a mortgage given by the husband, and also to set aside a conveyance of the property from him to her, for fraud, the inference from the language of the complaint is, that the conveyance was made in the ordinary form of a conveyance on purchase, and during marriage; and the wife demurs on the ground that facts sufficient to constitute a cause of action against her are not set out, in this, to wit: that the facts and circumstances constituting the fraud are averred in general terms only; and that there is a misjoinder of parties in making her a defendant: Held, 1st, that if she claimed the premises as her separate property by virtue of the conveyance from her husband, that circumstance was sufficient to justify plaintiff in making her defendant; 2d, that it was immaterial whether the conveyance to the wife was made with or without a fraudulent intent; that in either case it is unavailing against the mortgage, because the inference from the language of the complaint that the conveyance was upon purchase and during marriage, and consequently, that the property was common property, is not negatived by any averment that the property was transferred to her before marriage, or was a gift to her, or in exchange for her separate property.</p> <p>Barker v. Koneman (13 Cal. 10)