The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1897-07-24

against his co-debtor, and, therefore, to
the retention by such co-debtor of his
right to obtain a contribution from the
party SO released. Gam. and Eng.
Encyp. of Law, vol. 20, 1872
Second-The defendant contends that
on January 20, 1891, the date of the
alleged fraudulent conveyance by j. P.
Colbert to his son, said j. P. Odbert was
solvent, and therefore, authorized TO
make the conveyance in question or
any disposition of his property which
he might choose to make; that he con-
veyed the land described in the herein
before mentioned deed to his son with
out any intent to hinder or to defraud
the plaintiff, or any of the creditors
of said grantor
A solution of this question is difficult
because the testimony adduced at the
hearing concerning the financial con-
dition of ]. P. Odbert on the date on
which he made the deed to his son is
very meager and unsatisfactory.
j. p. Colbert was sworn as a witness
for the plaintiff and testified that he
was a surety on the bond OF said Cot
ton as guardian of the plaintiff for
$1,000, and also surety on another
bond of said Cotton as guardian for
plaintiffs sister for a like sum; that
these were the only liabilities or in
debtedness outstanding against him on
the Goth day of January, 1891, the date
of the making of the aforesaid deed to
his son; that on said date, in addition
to the land conveyed to his son, he
owned twelve acres of land situated
contiguous to the tracts which We're
conveyed to his son. The value OF
this tWelve-acre tract, however, he did
not state, but he did testify that he
resided with his family on said twelve
acre tract at said time, that the same
was, some nineteen months later dedi-
Gated as his homestead.
He further testified that at the date
of said deed he also owned the fol-
lowing personal property: One stallion,
worth $1,000; nine head of horses,
worth S1,SOO; eight cows, worth S400
to 5000; 80 tons of hay, worth 81
500; poultry, worth about 800; one
wagon, worth $125; one wagon, worth
S75; one cart, worth $50; one buggy
worth 5000; 30 head of hogs, worth
$3.50; and cash on hand amounting to
S400 to $500, and amounting in the
aggregate to some $1,000 to 1880
worth of property.
The only other testimony on this sub
ject was that of one Max Muller, a
blacksmith, who did business near the
home of said J. P. Odbert, and who
had seen the two wagons and cart
mentioned in the testimony of J. P.
Odbert, and whose valuation thereof
n ;o1l
alton placed thereon by said Odbert
And also certain statements made by
j. p. Odbert to the Assessor of Sac
ramento County for the years 1891,
1892 and 1898. These statements
showed that ]. p. Odbert owned about
the. same property as above described
but the same was valued at a much
less amount.
He also testified that he did not know
that A. T. Cotton had absconded until
fifteen months later than the date OF
the deed to his son; that the land
which he conveyed to his son was the
separate property of his wife, Julia M.
Odbert, the same having been pur-
chased by her with funds belonging
to her prior to her intermarriage with
him; that his said wife had often re-
queSted him to convey said lands to
their said son, he had failed thereto
fore to do so from mere neglect; that
on January 20, 1891, the date of the
aforesaid deed to his son, and being
in entire ignorance of the defalcation
of said Cotton, with intent to carry out
the wishes of his wife in the DISPOSE
ton of the property, the equitable title
to which was vested in her, and with
out any intent or design to hinder, i'm
pede, delay or defraud plaintiff or any
other creditor, he made, executed and
delivered the deed in question convey
ing said lands to his said son, George
E. Odbert.
The testimony of said Colbert con-
corning his want of knowledge of the
embezzlement of A T. Cotton and his
absconding the State, the equitable
ownership of the land in question by
his wife, and that the deed was made
at her request with intent to dispose of
the same according to her desire with
out any intent to defraud the plaintiff
or any one else, are fully corroborated
by the testimony of Julia NJ. Colbert.
And the testimony of both J. P. Cd
bert and his wife that they did not
know of Cotton's wrong doing until
more than year after the conveyance
to their son is corroborated by the
fact that they did not make a declara
ton of homestead until something more
than a year after the date of said
deed.
In the case of Emmons VS.. Barton
Q09th Cal. 662), our Supreme Court,
after a very exhaustive review of the
authorities, thus states the rule: "A
conveyance made by a husband to his
wife or a father to his child is valid as
against creditors, although the consid-
cratic mis- love and affection alone I'M
less it is made with actual intent to
defraud creditors; and the fact that it
was a voluntary conveyance does not
make it prima facie fraudulent; but
in order to avoid such conveyance, the
intent to defraud creditors must be
averred and proved as a question of
fact: and where there is no evidence
before the jury to show the insolvency
of the grantor at the time of the grant,
or any fraudulent intent on his part.
On the other hand, the evidence tends
to show that he then had other prop