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Haskell, Harriette Macnider wrote witness and told him about her father's death, and that the estate was in probate, and that she would pay witness; ... Witness consulted with other attorneys pertaining to Macnider's case; ... that witness consulted Mr. Early and Mr. Peart several times concerning the case and paid for it; that Mrs. Macnider knew that witness had employed other attorneys in the matter of her husband's case, and she did not object to it; in fact ad. vised that witness employ other attorneys; that at the present time witness is square with the Macniders, as the assignment in question was taken in full satisfaction of witness claim for services rendered and moneys expended for Macnider; that witness did not agree to give back any portion of the property to Mrs. Macnider or Mr. Macnider or to any one else; that witness has had absolute control of the one-seventh interest of Harriette Macnider in the Haskell estate since its assignment as his property; that witness has not accounted to Harriette Macnider for moneys received as income or anything from the assigned property, and does not intend to; that witness has nothing belonging to Harriette Macnider or W. B. Macnider; that at the time of taking the assignment witness did not agree to return any of the property or to account in any way to Mrs. Macnider and does not intend to;
that witness at no time knew anything concerning the financial standing of Harriette Macnider or W. B. Macnider; 'I know that Hopkins claimed that Macnider owed him the money that he was alleged to have taken, and for which he was arrested and charged, and that the suit entitled Macnider v. Hopkins determined that matter or was to have determined it in the shape of an accounting’; that at the time said assignment was made, witness had no conversation with Harriette Macnider or W. B. Macnider relative to defeating, delaying or defrauding any of their creditors; ... that the property received by White under the assignment is of uncertain value; that if witness disposes of the property for less than its estimated value, he will not look to the Macniders for the deficit; that if it sells in excess of the estimated value, he will not account for the overplus."
Defendant Harriette Macnider testified that the ranch property of her father included some mining claims “but they had been pretty well worked out”; after her father's
death her brother lived on the ranch and after he left an old man had charge of it. “But since the death of her father the ranch has laid idle and rather neglected. She does not know of any income from the ranch since her father's death. Witness testified that she did employ Roland J. White as W. B. Macnider's attorney ; that such employment was in November or December, 1908; that previous to the time witness employed Mr. White as Mr. Macnider's attorney, Mr. White had been looking up and getting a case prepared for Macnider; at the time Mr. Hopkins and Mr. Macnider were having trouble Mr. Macnider employed White first. "The services to which I have referred were services rendered by Mr. White as attorney at law, representing Mr. Macnider in an action in the superior court against S. J. Hopkins, for an accounting and in the proceedings wherein Macnider was charged with embezzelement. Mr. White had been representing Mr. Macnider and preformed services for him three or four months before I made any arrangements with Mr. White for compensation. I made an arrangement with Mr. White in his office in San Franciso. It was not an agreement in writing. I was alone when I went to see him’; that previous to that, witness saw Mr. Peart and Mr. Peart said he thought Mr. White would take up the case and go on if witness would make arrangements about a settlement with White; ... that after that White rendered services for Macnider; that after witness talked with White, he con. tinued to represent Macnider through November, December, January and probably February. An action was brought in Sonoma County by Mr. Hopkins against Mr. Macnider and myself upon a promissory note. Mr. White did not represent either Mr. Macnider or myself in that case; (there is no evidence that White knew of this indebtedness); ... witness paid White $20.00 or $30.00 on account; 'I just made that one payment to Mr. White. It was for services for Mr. Macnider, and was to go on account. Mr. White had not given me any statement of his account at that time, but he had written for money several times. I have none of his letters.' ... White told witness at the time the arrangement was made that he, White, would take witness' share in said estate as full payment for his services to Macnider and call it square.
.. Defendant White gave witness a receipt
when witness made said arrangement; witness has not that receipt; she misplaced the receipt and cannot find it; has looked for it in all her papers. It read that the assignment made by witness to White covers all his services rendered to Macnider. Mr. Early prepared the receipt after we had signed the agreement or paper that he made out. . . After September 12, 1909, she had not received any letters from Mr. White and did not see him again until the day before she testified. ... The first conversation the witness had with Mr. White, relative to his acting as Macnider's attorney, was around November, 1908. After that she saw him on an average of three or four times a month. ... Witness was present in the office of Mr. Holton in Los Angeles, when the distribution of the estate was made.'
Much of the same ground is gone over in the deposition of defendant W. B. Macnider. Of the ranch which had been distributed he testified that one of the sons of deceased was in possession and harvested the crop of 1910; that different heirs visited the ranch at different times.
We quote from the transcript : "that witness saw Harriette Macnider execute the assignment in question to Roland J. White; Mr. Early prepared the paper. He drafted it at our house, and Mrs. Macnider signed the paper in Mr. Clark's office in Santa Cruz (where the Macniders were then living.) I was present at that conversation at the house, between Mr. White and Mrs. Macnider, relative to the making of the assignment. Mr. Early and Mr. White went out and took a walk while my wife and I discussed the matter of making the assignment'; that witness saw Roland J. White give Harriette Macnider a receipt the day the assignment was made; that Roland J. White did not tell witness that day the amount of his bill for services rendered by him to the witness or how much Roland J. White had expended for Mr. Macnider prior to that time. 'I had an idea of how much he had expended for me, but I don't think it was discussed at that time. Mr. White never presented a bill for his services rendered.' Macnider testified to the different matters in which White served him; to White's urging him to pay him or in some way to assure him that he would be paid; “At one time White said that he, White, would not pay out much more out of his own pocket, and witness had his wife see him
and he said if witness could not get somebody to guarantee the payment he would not carry on the work. I never secured White in any way except that I had my wife, Harriette Macnider, see White and guarantee White's compensation at a time that White thought he could not carry on the cases for me any longer, which was in the fall of 1908." Speaking of the assignment witness testified: “Witness and his wife had been endeavoring to square themselves with White, and Harriette Macnider thought the best thing they could do was to assign her interest over to White in payment, and White agreed to accept the assignment in full payment. ... My wife made the assignment with the understanding that she assumed my obligations with him."
It appears from the deposition of the administrator of the Haskell estate that the inventory and appraised value of the real and personal property was $26,745.60, of which $24,700 was the value of the real estate that a portion of the ranch was sold, before distribution, for one thousand eight hundred dollars less than its appraised value; that there remained for distribution $20,583.09, of which $4,981.07 was cash on hand. There is no evidence otherwise of the value of the ranch except in a letter received from an attorney at Los Angeles. White was led to believe that the value of the estate property was about thirty-five thousand dollars; as to its producing an income the evidence was that but little was realized. What the actual value of the land was when the assignment or the distribution was made does not appear. It appeared that after the death of Mr. Haskell "the ranch was in the possession of the boys who lived on the ranch; that Mr. Charles Macnider lived on the ranch three or four months after their return from the north.”
Respondent contends that actual fraud is shown, but his principal reliance is—first, that Mrs. Macnider's engagement was that of a guarantor and, as it was not in writing, it was void under section 2793 of the Civil Code, and that the promise was not within any of the provisions of section 2794 of the same code; i. e., that the creditor did not part with value, or enter into any obligation, in consideration of the obligation, in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor"; and, second, that
the evidence established constructive fraud under section 3442 of the Civil Code, for that the transfer was made “voluntarily or without a valuable consideration, by a party while insolvent"; and also, under section 3439, for that the transfer was made “with intent to delay or defraud” creditors. We can discover no evidence in the record which in any just view can be said to support the claim of actual fraud, and actual fraud is always a question of fact. (Civ. Code, sec. 1574.) In a case where constructive fraud is relied on, it is necessary to allege the fraudulent intent, under section 3442. (Schell v. Gamble, 153 Cal. 448, (95 Pac. 870). It is only by reason of the proviso in that section that fraud becomes established constructively or as matter of law. (Cook v. Cockins, 117 Cal. 140, (48 Pac. 1025]; Gray v. Brunold, 140 Cal. 615, [74 Pac. 303].) Section 1573 of the Civil Code provides that constructive fraud is—"any such act or omission as the law specially declares to be fraudulent." The transfer of property with intent to delay or defraud creditors is declared by section 3439 of the Civil Code to be void as to creditors. But the intent in such a case is a question of fact and is not to be presumed from the mere fact of the transfer, for section 3432 expressly provides that—"a debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in preference to another.” (McKee v. Title Ins. & Trust Co., 159 Cal. 206-217, (113 Pac. 140).) It is only where the transfer is “made or given voluntarily, or without a valuable consideration, by a party while insolvent or in contemplation of insolvency," that the statute declares such transfer to “be fraudulent and void as to existing creditors.” (Civ. Code, sec. 3442.)
Respondent devotes some attention to his claim that defendant Mrs. Macnider was merely a guarantor of her husband's liability. It seems to us a fair consideration of the evidence leads to the conclusion that she became a principal to whom as such, as well as to her husband, defendant White looked and had a right to look for payment. It is true that defendant Macnider, in his testimony, used the word “guarantee" in speaking of his understanding of the matter, but the testimony of Mrs. Macnider and of White, who were the parties to the engagement, shows that she employed White and