Miller v. Kehoe

Citations

• 107 Cal. 340
• 40 P. 485
• 1895 Cal. LEXIS 756

Syllabus

<p>Fraudulent Conveyance—Creditor’s Bill—Appeal—Conflicting Evidence.—Upon a creditor’s bill to set aside a conveyance alleged to have been made without consideration and with intent to hinder, delay, and defraud the creditors of the grantor, where there is a substantial conflict in the evidence, a finding that the conveyance was made to hinder and defraud creditors cannot be disturbed upon appeal.</p> <p>Id. —Rights of Assignee in Insolvency—Receiver in Creditor’s Supe —Sale of Property of Insolvent.—Where a conveyance in fraud of creditors was made several months before a proceeding in insolvency was instituted against the grantor the assignee in insolvency is not entitled to recover the property as assets of the insolvent estate; hut the property may be sold upon a creditor’s bill by a receiver appointed for that purpose for the benefit of the creditors suing as plaintiffs in the action.</p> <p>Id.—Attorneys’ Bees—Costs—Improper Allowance.—The court cannot decree attorneys’ fees to he paid to the creditors, plaintiffs, nor to the assignee in insolvency, out of the gross proceeds of the sale of the property, nor can it allow costs to the assignee in insolvency out of the fund.</p> <p>Id.—Attorneys’ Bees, When and When not Recoverable.—The general rule is that counsel fees are not recoverable by a successful party in an action either at law or in equity, except in enumerated instances-where they are expressly allowed by statute.</p> <p>Id.—Allowance of Counsel Bees Out of Bund—Common Interest— Adverse Claim__Counsel fees may be allowed in equity in an action for the preservation or distribution of a fund where all the parties have a common interest; but a plaintiff who brings suit for himself and others interested with him cannot recover counsel fees against a defendant who denies the right of each and all of the plaintiffs, and sets-up in himself an adverse and independent title to the thing in litigation.</p>