Le Clert v. Oullahan

52 Cal. 252

• Court: California Supreme Court
• Decided: July 1, 1877
• Docket: No. 5361
• Status: Published

Opinion

An unrecorded deed is good between the parties, and as to all the world but subsequent purchasers in good faith. (Hastings v. Vaughn, 5 Cal. 315; Ricks v. Reed, 19 Cal. 577.) It is also good as against an attaching creditor. (Plant v. Smythe, 45 Cal. 161; Rose v. Munie, 4 Cal. 174.)

Terry, McKinne & Terry, for the Despondents.

By the Coubt :

The writ of attachment in the case of Oullahan v. Stryker was levied September 8th, 1875. On the 4th of September, 1875, Stryker had conveyed the premises to Le Clert, the plaintiff, and on the next day had assigned to him the certificate of purchase. Neither the deed nor the certificate and its assignment had been recorded at the time the attachment was levied; but, though not recorded, they would, in the absence of fraud, prevail against the writ of attachment levied subsequently to their delivery. But the answer sets up that the transfer to the plaintiff was made without consideration, “ and with intent to hinder and delay and defraud E. Oullahan, one of these defendants, who was and is a creditor of said Stryker.” Upon the issue of fraud in fact thus tendered by the answer the findings are entirely silent.

This cause is, therefore, not in a condition to be decided; and it is remanded to the Court below, with directions to determine the issue of fraud made by the answer, upon the evidence already before it, and such other proper evidence as may be offered upon either side. Costs to abide the event. Remittitur forthwith.

J