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January 15, 1909, the defendant deeded to his mother real estate worth eight thousand dollars, and she, on the same day, conveyed it to the Derby Estate Company. By these two deeds and the previous transfer of defendant's stock in the Derby Estate Company to his wife she got the full benefit of the transfer of the real estate.

August 11, 1909, the E. M. Derby & Co. transferred all its real and personal property to J. F. Carlston and Oliver Ellsworth, in trust for its creditors. September 8, 1909, all the real estate of E. M. Derby & Co. and of the defendant was attached on claims held by Central Bank and Rogers, amounting to fifty-five thousand dollars, and sold under execution. The defendant, in addition to his stockholder's liability in E. M. Derby & Co. had indorsed notes for said company amounting to fifty-five thousand dollars, and was individually liable thereon. He also owed his sister, Mrs. Harmon, twelve thousand dollars, secured by mortgage on certain real estate. He also owed one-third of an indebtedness of the E. M, Derby Co. to E. J. Dodge Co. of $10,770.40, his proportion thereof being $3,569.12. After the transfer of all of the assets of the E. M. Derby & Co. to J. F. Carlston and Oliver Ellsworth, trustees in trust for the creditors of the corporation made, as above stated, on August 11, 1909, the plaintiff received from said trustees different sums of money which were credited on the indebtedness of E. M. Derby & Co. to it. These payments, together with other money secured between January 13, 1909, and August 11, 1909, reduced the indebtedness of E. M. Derby & Co. to the plaintiff to $36,187.21. On April 13, 1910, the plaintiff brought an action against the defendant to recover, upon his stockholder's liability, his proportion of the above indebtedness, and, on July 29, 1910, secured a judgment therein against the defendant for the sum of $12,358.40. On May 10, 1910, the plaintiff having obtained an assignment to it of the claim of E. J. Dodge Co. against E. M. Derby & Co., brought an action against the defendant to recover judgment against him for his proportion thereof as a stockholder, and, on July 29, 1910, recovered a judgment against him for $3,671.09. Upon these two judgments last mentioned the plaintiff brings this suit as a judgment creditor to set aside the transfer of the 99 shares of stock of E. M. Derby Estate Company by defendant to his wife. The figures here

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inbefore given may not in all cases be wholly accurate but they are sufficiently accurate for present purposes.

The foregoing statement does not contain a recital of all the facts proved tending to support plaintiff's case. In fairness to the defendant, it should be stated that on the trial he gave more or less plausible reasons and explanations for the various transfers of property made by him, but the trial judge was at liberty not to accept them at their face value, and evidently did not.

We think this bare recital of the history of events, with the inferences that may legitimately and properly be drawn therefrom, show that the court had ample justification for its finding that the gift of the 99 shares of stock was made with intent to hinder and delay the creditors of defendant in collecting their debts. In fact, it is difficult to see what other conclusion could properly be reached.

The defendant owned one-third of the stock of a corporation engaged in the active business of buying and selling lumber. It was losing money rapidly, the year before the stock was transferred to his wife having lost twenty thousand dollars, or one-third of the amount for which it was capitalized. The defendant was fully aware of the condition of the company. It was, as counsel express it, a “sinking ship,' and defendant fully realized and appreciated the situationso much so that, in November, 1908, he offered, in connection with his brother, to transfer to the plaintiff all his stock in the corporation if plaintiff would assume all of his liabilities entailed by the stock. One witness testified that, in addition to the transfer of all his stock to get released from his stockholder's liability, the defendant and his brother also offered to transfer to plaintiff their personal real estate holdings, valued at thirty-eight thousand dollars. This was denied by defendant but, for aught we know, the court may have believed the witness. This conduct shows exactly what the defendant believed to be the condition of the company, and gives an insight, and a clear one, into his state of mind and desires. Not having made the suggested deal with the plaintiff, in January, 1909, he gave to his wife the stock in dispute. Next he deeded to his mother certain real estate without consideration, and next made a stenographer in the office of his attorney a present of all of his stock in the E. M. Derby & Co.; and all these things were being done when he was largely

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indebted as herein indicated. But one inference can be properly drawn from this conduct.

We deem it unnecessary to go into a close mathematical calculation to figure out on a close margin whether the defendant at the time of the transfer might have had a small excess of assets above his liabilities. A solvent person may transfer property with intent to hinder his creditors, as well as one who is insolvent. "It is obvious, therefore, that the question upon which the case must turn is whether the conveyance is in fraud of the rights of the plaintiff as a creditor. This, under our statute, is a question of fact (Civ. Code, sec. 3442), that is to say, a question of intent." (Knox v. Blanckenburg, 28 Cal. App. 301, [152 Pac. 62].) It is not often that direct proof of fraud can be obtained. People do not in such cases proclaim their intent. It can only be inferred in most cases from all the attending facts, circumstances, and conditions and by ascribing to the conduct of people those motives which would ordinarily be the motives of others doing like things under like circumstances.

Appellant assigns as error the admission in evidence of judgment, writs, and execution in the suit brought by plaintiff to obtain the judgment, the foundation of the suit. To enable the plaintiff to maintain this suit it was necessary for him to show that he was a judgment creditor and that he had exhausted his legal remedies to obtain satisfaction of his judgment. Some other objections are raised as to the admission of testimony, but as most of them had a bearing upon the question of insolvency, they need not be further considered. In this class of cases a wide latitude is permissible. “In litigations of the class under consideration, great latitude should undoubtedly be allowed in regard to the admission of circumstantial evidence for the purpose of proving participation in manifest fraud. Objections to testimony as irrelevant are not favored in such cases, since the force of circumstances depends so much upon their number and connection. The evidence should be permitted to take a wide range, as in most cases fraud is predicated on circumstances, and not upon direct proof.(Bush & Mallett Co. v. Helbing, 134 Cal. 676, (66 Pac. 967].)

We are of the opinion that the finding of the court that said 99 shares of stock were transferred by the defendant to his wife in fraud of the rights of his creditors, and especially of

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the plaintiff, is sustained by the evidence. Finding no reversible error, the judgment and order are affirmed.

Chipman, P.J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 21, 1916.

(Civ. No. 1540. Third Appellate District.July 26, 1916.) G. W. WIGLEY, Petitioner, v. SOUTH SAN JOAQUIN

IRRIGATION DISTRICT et al., Respondents.


1911-CONSTITUTIONALITY OF.—The act of 1911 providing that the holder of any elective office of any irrigation district may be removed or recalled at any time by the electors does not violate section 18 article IV or section 1 of article XXIII of the constitu


AND SECTION 1, ARTICLE XXIII, or CONSTITUTION.-Prior to the adoption of the constitutional provisions upon the subject, the legislature had the power, under its general legislative authority, to pass acts for the recall of public officers; and neither section 18 of article IV nor section 1 of article XXIII of the constitution can be


POWERS.—The constitution of this state is not to be considered as a grant of power, but rather as a restriction upon the powers of the legislature, and it is competent for the legislature to exercise all powers not forbidden by the constitution of the state, or delegated to the general government, or prohibited by the constitution of the United States.

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Mandate against the Board of Directors of South San Joaquin Irrigation District, commanding it to call an election for the recall of one of its members.

The facts are stated in the opinion of the court.

Clary & Louttit, for Petitioner.

L. L. Dennitt, for Respondents.

ELLISON, J., pro tem. This is an application for a writ of mandate to the board of directors of the South San Joaquin Irrigation District, commanding it to call an election for the recall of one of its members.

The application for the writ shows that the recall petition presented to said board conformed in all respects to the provisions of an act of the legislature as found in the statutes of the extra session of 1911, at page 135. This act provides : "The holder of any elective office of any irrigation district may be removed or recalled at any time by the electors."

Counsel for the board of directors take the position that the legislature, in passing the above act and extending the recall to officers of an irrigation district, acted in violation of certain provisions of the state constitution and exceeded its powers. This conclusion is attempted to be sustained by a reference to section 18 of article IV of the constitution, and to section 1 of article XXIII. Section 18 provides for the removal of certain officers, such as governor, judges, etc., by impeachment, and concludes with this sentence:“All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide," and section 1 of article XXIII provides for the recall of certain specified officers, viz., for the recall of elective officers of counties, cities and counties, and cities and towns of the state, but does not in express terms provide for the recall of district officers. Considering these two sections of the constitution, counsel's position may be stated as follows: Since the constitution does not provide for the recall of district officers but does provide that they may be removed from office after a trial and conviction of misdemeanor in office, it follows that the latter provision is exclusive, and the legislature has no power to pass any act for their removal other than an act to provide for their removal for cause. The argument challenges the power of the state legislature to pass the act of 1911. It must be considered, however, that, in the absence of section 1, article XXIII, of the state constitution, the legislature would

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