Fitch v. Corbett

California Supreme Court

Fitch v. Corbett

28 P. 231, 64 Cal. 150, 12 P.C.L.J. 242, 1883 Cal. LEXIS 591

CourtCalifornia Supreme Court

DecidedSeptember 8, 1883

StatusPublished

Cited by1 cases

This text of 28 P. 231 (Fitch v. Corbett) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitch v. Corbett, 28 P. 231, 64 Cal. 150, 12 P.C.L.J. 242, 1883 Cal. LEXIS 591 (Cal. 1883).

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Opinion

Per Curiam.

This action was instituted to set aside a conveyance alleged to have been executed to hinder, delay, and defraud creditors, and especially one E. M. Heistand, the plaintiff’s assignor, of her rights as creditor. Actual fraud is averred and found as a fact, and the finding is sustained by the evidence. It is argued that because Mrs. Heistand knew of the fraudulent conveyance that neither she nor her assignor can avoid it. We cannot see that there is any reason in this position, for if she was aware of the conveyance, and knew its fraudulent character, it was still void, and she has done nothing by which her right to proceed to annul it for fraud has been waived or given up. If she knew the character of the conveyance she knew that it was fraudulent, and by consequence void. (Carter v. Castleberry, 5 Ala. (N. S.) 279.) For did she waive any right by settling with Corbett for seven thousand five hundred dollars. How the settlement of the 3d of July, 1878, purged the fraud we cannot conceive.

The counsel for appellants is mistaken in viewing this case as a mere' voluntary conveyance to the wife without actual fraud, and as only constructively fraudulent against' existing [152]*152creditors. It is, as we have said above, a case of actual fraud alleged, established, and found.

We have examined the errors of law assigned and find none of them maintainable. .

Judgment and order affirmed.

Hearing in Bank denied.

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Per Curiam.

This action was instituted to set aside a conveyance alleged to have been executed to hinder, delay, and defraud creditors, and especially one E. M. Heistand, the plaintiff’s assignor, of her rights as creditor. Actual fraud is averred and found as a fact, and the finding is sustained by the evidence. It is argued that because Mrs. Heistand knew of the fraudulent conveyance that neither she nor her assignor can avoid it. We cannot see that there is any reason in this position, for if she was aware of the conveyance, and knew its fraudulent character, it was still void, and she has done nothing by which her right to proceed to annul it for fraud has been waived or given up. If she knew the character of the conveyance she knew that it was fraudulent, and by consequence void. (Carter v. Castleberry, 5 Ala. (N. S.) 279.) For did she waive any right by settling with Corbett for seven thousand five hundred dollars. How the settlement of the 3d of July, 1878, purged the fraud we cannot conceive.

The counsel for appellants is mistaken in viewing this case as a mere' voluntary conveyance to the wife without actual fraud, and as only constructively fraudulent against' existing [152]*152creditors. It is, as we have said above, a case of actual fraud alleged, established, and found.

We have examined the errors of law assigned and find none of them maintainable. .

Judgment and order affirmed.

Hearing in Bank denied.

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Bluebook (online)

28 P. 231, 64 Cal. 150, 12 P.C.L.J. 242, 1883 Cal. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitch-v-corbett-cal-1883.

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