Thornburgh v. Hand

Citations

• 7 Cal. 554

Syllabus

<p>Every sale of property and personal chattels is good between the parties, and cannot be attacked for fraud, except by a creditor who has recovered judgment and taken out execution against the vendor, which has been returned unsatisfied, in whole or in part—with the single statutory exception of an attaching creditor, and his remedy being unknown to the common law, he must show affirmatively that his attachment has been properly issued, under the statute, before he can attack the sale.</p> <p>For such a purpose, the writ of attachment, coupled with proof of the debt, is inadmissible in proof, without introducing the affidavit and other requisites to the issuing of the writ.</p> <p>Where the vendee replevied the goods from the attaching creditor, and only established title by proving a possession of several months, it was competent for the defendant in replevin, on cross-examination of plaintiff's witness, to ask in whose possession the chattels were at a certain period anterior to the possession proved by plaintiff, in order to draw from him, if possible, the fact that plaintiff's possession was a fraud to hide the debtor’s property.</p>