mortgage to the bank"; and the principle which counsel say must control is "that a man who does not speak when he ought, shall not be heard when he desires to speak."

If Mrs. Maxwell had informed the bank of her intention to place the property in question beyond the reach of her creditors, 367 or sought Mr. Elliott's advice in the matter, the maxim might have an application. But "it is an essential element of estoppel by conduct that the party claiming the estoppel should have relied upon the conduct of the other, and was induced by it to do something which he otherwise would not have done": McCormick v. Orient Ins. Co., 86 Cal. 260. It is not pretended that the plaintiff induced the trust deed to be made, or advised that it be made, or that subsequent to the making of it anything was done in relation to the trust property by Mrs. Maxwell or the trustee which, but for the conduct of the plaintiff, would not have been done. On the contrary, a delay in the commencement of legal proceedings and an attachment of the property conveyed by the trust deed was made upon the express condition that no conveyance of her property or change in its situation should be made. This promise is not controverted, except by the testimony of Mrs. Maxwell that she did "not remember it." Neither the statement of counsel for respondent, nor the findings of the court, nor the testimony of any witness shows that Mrs. Maxwell did anything in relation to the property in question, in consequence of the conduct of the plaintiff, that she would otherwise not have done, except to convey the property to the trustee in consequence of the announced intention of the plaintiff to commence legal proceedings for the collection of its claim against her. The equitable maxim, invoked by counsel, surely cannot be based on that, nor indeed, do they claim any such basis for the waiver or estoppel existed, nor even that there was any verbal agreement or understanding that the validity of the trust deed would not be attacked.

It was said by Sir Edward Coke, referring to the statute of 13 Elizabeth, that if there is actual fraud at the outset of a transaction nothing afterward can "anyways salve or amend the matter." It is conceded that this is not now the broad and unbending rule. The exceptions to it are stated in Bigelow on Fraud, volume 2, pages 407, 408, to be cases of present or subsequent consent or ratification by the creditor, and an undoing of the fraud, as by a reconveyance before proceedings are commenced. We do not think that the acts of the plaintiff, which defendants call "a waiver," amount to a subsequent consent or

368

ratification by the creditor. "To make out a case of abandonment or waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part": Ross v. Swan, 7 Lea, 467.

"A waiver is the intentional relinquishment of a known right": 28 Am. & Eng. Ency of Law, 526.

The conclusion of the court below that plaintiff waived the fraud of defendants was based, as the evidence and the findings conclusively show, wholly upon the fact that it took the note and mortgage with knowledge of the financial embarrassment of Mr. and Mrs. Maxwell, and of the making and recording of the trust deed. Those facts do not justify the inference that the plaintiff intended to waive the fraud. Nothing was said upon that subject. No stipulation to that effect was inserted in the note or mortgage. The only inference to be drawn from the mortgage is that of a condition attached by the law to all mortgages, namely, that the mortgaged property shall be first exhausted, and if that proves insufficient a judgment for the deficiency shall be docketed which may be enforced against any other property liable to execution. It is not contended that this statutory right was waived as to any other property than that fraudulently conveyed, though I can see no logical or satisfactory reason why the supposed waiver would not equally apply to such other property. Any other interpretation of the law, or inference of fact, would make fraud a virtue to be carefully protected and nurtured into full fruition. There was no dealing with the trustee in relation to the trust property. From the time the trust deed was delivered Mrs. Maxwell was a stranger to the title of the property thereby conveyed. She had no authority to act concerning it. She could neither exempt it from the payment of her debts nor apply it thereto. The giving of a mortgage as security for an antecedent debt requires no new consideration to support it, nor does it impose upon the mortgagee any condition not expressed upon its face other than those provided by law. The note and mortgage were in writing and expressed the whole agreement of the parties. This transaction falls far short of "clear, unequivocal, and decisive" evidence of a purpose on the part of the plaintiff to waive a legal right given it by the solemn act of the mortgagors and in the absence of such evidence a court 369 of equity will not infer a waiver. As in all cases where a mortgage is taken to secure a

debt then due, the taking of the security operated to suspend the right of proceeding against the property fraudulently conveyed, or any other property of the debtor, until the mortgaged property should be exhausted and a deficiency judgment docketed; but we cannot perceive any principle upon which such suspension of the remedy without more should operate more favorably upon property fraudulently conveyed than upon property still remaining in the hands of the debtor, all being alike subject to the process of the law in favor of existing creditors.

Respondents cite several authorities, but none of them sustain their contention that the facts of this case show a waiver on the part of the plaintiff. Our attention is particularly called to the case of Pell v. Tredwell, 5 Wend. 661, from which they quote the following passage: "A family settlement-that is, a conveyance by a parent of all his real estate to a daughter for the benefit of herself and her brothers and sisters-made bona fide, will not be set aside in favor of a creditor at the time of the conveyance by whose advice and procurement the settlement was made, the creditor having at the time ample security for the money due him by mortgages upon specific portions of the estate, but which, after a lapse of ten years, proved insufficient at a forced sale to satisfy his demand. Nor will the creditor be permitted to raise the residuum of his debts by sale of the lands not covered by his mortgages." No one doubts that a voluntary conveyance, "made by the advise and procurement of a creditor," is valid as to him.

Wolf v. Van Metre, 23 Iowa, 397, cited by respondents, lends no support to their contention. There the husband gave a note to the plaintiff for his personal debt, and his wife signed it as surety and gave a mortgage on one parcel of land to secure it. She afterward, in good faith, made a voluntary conveyance of other lands to her children, and, after the last-mentioned conveyance was made, the plaintiff, with knowledge thereof, surrendered his note and mortgage and took a new note, and a mortgage executed by the wife, on the lands conveyed to the children. The court held: "Where the voluntary conveyance is made in good faith, and the subsequent purchaser or encumbrancer has 370 notice of it, he cannot defeat it." One material distinction between that case and this is that here the voluntary conveyance was not made in good faith, but with an undisputed fraudulent intent; and another is that under the laws of Iowa, as declared by the court in that case, the wife was not personally liable upon the note; that she could only create

a liability against her property, and could not, therefore, make a conveyance in fraud of her creditors, who could have no legal or equitable right in any of her property except that specially charged.

In the case of Zuver v. Clark, 104 Pa. St. 222, the statement of facts shows that the creditor was present at the execution of the deeds alleged to be fraudulent, and was a subscribing witness to their execution, and that the exchange of properties was made upon his recommendation.

Bobb v. Woodward, 50 Mo. 95, cited by respondents, was the case of an assignment to hinder and delay creditors. It was held that the creditors might have treated the sale as a nullity, but, having failed to do so, and having lain by and suffered the assignee to carry on the business in his own name and with his own money and credit, to sell out and replenish the stock, and engage in other transactions based on their acquiescence, the creditors were estopped. But here there was no change in the property by the trustee or the beneficiaries induced or acquiesced in by the creditors. None of the cases cited by respondent are more nearly in point than those above noticed. The burden of proving a waiver of or acquiescence in the fraud is upon the defendants, and such waiver or acquiescence cannot be inferred from the facts appearing in the evidence in this case. It is further contended by respondents that plaintiff was not a judgment creditor having a lien upon the property in controversy, and was not, for that reason, entitled to redeem from the sheriff's sale to Etchepare.

That plain

This contention is based upon two grounds: 1. tiff waived the fraud, and thereby admitted the title of the trustee; and 2. That admitting the trust deed was made to delay and defraud creditors as alleged, the judgment lien could not attach to the land because the conveyance was operative between the parties, and hence there was no title or interest in Mrs. Maxwell to which the lien could attach.

371 The first of these grounds has been disposed of and need Dot be further noticed.

The second ground is wholly untenable. The code expressly declares that such transfer "is void against all creditors of the debtor." "A void thing is as no thing." So far as existing creditors are concerned, the title and ownership of the property remains in the fraudulent grantor as fully as though no transfer had been attempted.

In 1 Freeman on Executions, section 136, it is said: "As

against the fraudulent transferee the creditor may seize the property, whether real or personal, as that of the fraudulent vendor, and may proceed to sell it under execution. The title transferred by such sale (on execution) is not a mere equity—not the right to control the legal title and to have the fraudulent transfer vacated by some appropriate proceeding; it is the legal title itself, against which the fraudulent transfer is no transfer at all."

This language was quoted and approved by this court in Judson v. Lyford, 84 Cal. 507. See, also, Bull v. Ford, 66 Cal. 176, where the same point was decided.

The case of In re Estes, 6 Saw. 459, cited by respondents, appears to sustain their contention; but as the point is conclusively settled by our own decisions it is not necessary to review that case.

If it be true, as the authorities clearly hold, that so far as it is necessary for the protection of creditors the title and ownership remains in the fraudulent grantor, and that a sale under execution will pass the legal title to the purchaser, it must logically follow that a judgment duly docketed becomes a lien on the real estate so fraudulently conveyed. If there is nothing to which a judgment lien could attach, there can be nothing which would pass by a sale on execution.

I therefore conclude that the plaintiff had a judgment lien, and was entitled to redeem the property from the sale under execution issued upon the Etchepare judgment.

Another question should be briefly noticed. The answer alleges, and the court found, that aside from the property embraced in the trust deed Mrs. Maxwell owned real estate aggregating several thousand dollars over encumbrances, and was possessed of a large amount of personal property, unincumbered, aggregating in value between five and six thousand dollars.

372 This is not a finding that the trust deed was not made to delay and defraud creditors, though competent as evidence tending in some measure toward that conclusion, though far from being in itself conclusive. In Bigelow on Fraud, volume 2, page 393, it is said: "Indeed, it matters not, where personal intent to defraud is shown, that the fraudulent conveyance, if allowed to stand, would not harm anyone, by reason of the fact that the debtor has other property ample in amount within the reach of his creditors"; and in Hager v. Shindler, 29 Cal. 60, it was said: "A rich man may make a fraudulent deed as well as one who is insolvent": See, also, Bull v. Bray, 89 Cal. 300.