for negligence and damages. That the admission of the ordinance in evidence was prejudicial to the defendant is obvious. Undoubtedly it had a tendency to cause the jury to believe that the defendant had been guilty of a violation of it. Its admission could serve no other purpose, and serving that purpose doutbless prejudiced the defendant and his case upon the issue of negligence in the eyes of the jury.

It is further contended upon behalf of the defendant that the evidence does not support the finding of the jury implied from the verdict that the defendant was guilty of negligence in the operation of his automobile at the time of the collision and that the evidence on the other hand does show that the plaintiff was guilty of contributory negligence.

The argument made in support of this contention is directed largely to a consideration of the weight of the evidence and the credibility of the witnesses, and we are satisfied, after a review of the record, that the question of the negligence of the defendant and the claimed contributory negligence of the plaintiff were, under all of the facts and circumstances of the case, questions of fact for the jury to determine, and were therefore properly submitted to it for decision.

The judgment and order appealed from are reversed.

Kerrigan, J., and Beasly, J., pro tem., concurred.

[Civ. No. 1791. Third Appellate District.—January 24, 1918.] WILLIAM FRANCK, as Administrator, etc., Respondent, V. JOHN MORAN et al., Appellants.

FRAUDULENT CONVEYANCES

- LACK OF VALUABLE CONSIDERATION-PRESUMPTION UNDER SECTION 3442, CIVIL CODE.-Under section 3442 of the Civil Code, if a transfer of property is made without a valuable consideration and while the grantor is insolvent or contemplates insolvency, the indisputable presumption follows that the transaction is fraudulent, and the conveyance may be set aside at the instance of a creditor.

-

ID. RECITAL OF VALUABLE CONSIDERATION LACK OF CONTRADICTORY EVIDENCE - CONVEYANCE FOR VALUABLE CONSIDERATION. - A deed reciting a consideration of love and affection, better support and

maintenance, one dollar, and other good and valuable considerations, cannot be held to be a conveyance without a valuable consideration, in the absence of any evidence contradicting the express declarations of the instrument.

ID. INTENT TO DEFRAUD-QUESTION OF FACT-BURDEN OF PROOF.-TO make a conveyance fraudulent under section 3449 of the Civil Code, there must be the intent in the mind of the grantor to delay or defraud a creditor or other person of his demands, and the question is one of fact and not of law, with the burden of proof upon the complaining creditor to show that the conveyance was made with such intent.

ID. INTENT TO DEFRAUD FUTURE CREDITORS.-The intent to defraud is not limited to the debt owed at the time of the conveyance, but the conveyance is equally subject to nullification if the intention existed to defraud a future creditor of a just claim.

ID. FINDING OF INTENT TO DEFRAUD-EVIDENCE-APPEAL.-Intent to defraud creditors is to be determined from all the surrounding facts, and if a finding in reference thereto may be said to constitute a rational inference from the evidence, it cannot be disturbed by the appellate court.

ID. EVIDENCE OF INTENT To Defraud.-When it is shown that a person is indebted to another, and so continues, and that he has divested himself of all his property and thereby renders himself incapable of paying his debts, it may be just and reasonable to hold that he intended when he executed the conveyance to render the creditor powerless to obtain the satisfaction of his claim.

ID. SILENCE OF GRANTEES - FAILURE TO RECORD CONVEYANCE-ESTOPPEL AS AGAINST CREDITORS OF GRANTOR.-Where credit was extended on the faith that the grantor was owner of the property, it would be inequitable to allow the grantees, who remained silent and failed to record their conveyance until the indebtedness was incurred, to prevent the creditor from resorting to such property, especially where the grantor is insolvent.

ID.-ACTION TO SET ASIDE DEED-CONSPIRACY-JOINT LIABILITY.—In an action to set aside a deed to real property on the ground that the same was made without consideration and with intent to defraud creditors, where there was some evidence that the defendant, to whom a deed was executed a short time before the action was commenced, became a party to the conspiracy to defraud, it cannot be held inequitable to hold him jointly liable for the consequences of the conspiracy, although he was not directly connected with the fraudulent purpose in the beginning.

APPEAL from a judgment of the Superior Court of Shasta County. J. E. Barber, Judge.

The facts are stated in the opinion of the court.

36 Cal. App.-3

Braynard & Kimball, for Appellants.

W. D. Tillotson, for Respondent.

BURNETT, J.-This is an appeal from the judgment rendered by the superior court of Shasta County in a suit in equity to set aside two deeds to real property, in which action defendants' motion for a new trial was denied.

The property in question was, on November 18, 1905, owned by Sarah B. Hunter, who at that time and at all times subsequently had but one creditor, Franck & Co., to whom she then owed $640.46. On said date she executed a trust deed to J. E. Hunter and Grant Hunter for the benefit of Laura Hunter Newman, Ralph Newman, and Ruby Newman (Mrs. Moran), with directions to trustees to sell at Mrs. Laura Newman's orders and pay all proceeds to said Laura Newman. This deed was not recorded until 1915. It appears that on January 1, 1909, Sarah B. Hunter was indebted to Franck & Co. in the sum of $2,614.25, on January 1, 1910, in the sum of $3,499.90, and on January 1, 1911, in the sum of $1,287.50. On December 31, 1910, she was given. a credit of $2,850, and during the next two years ending December 31, 1912, she was credited with one thousand two hundred dollars. It thus appears that, from 1905 to December 31, 1912, she was credited with $4,050, and that the credit. on December 31, 1910, was sufficient to cover the indebtedness as it stood on January 1, 1909. On January 23, 1913, Sarah B. Hunter executed a deed of the property covered by the trust deed to Laura Hunter Newman, which was recorded April 25, 1913. It may be noted in passing that respondent argues that this amounted to a repudiation by Laura Newman of the former trust deed. Sarah B. Hunter died March 31, 1913, and at the date of her death was indebted to Franck & Co. in the sum of $1,203.60. On March 27, 1915, letters of administration were issued to respondent, William Franck, one of the members of the firm of Franck & Co., and on April 7, 1915, he commenced suit against appellant, Laura Hunter Newman, to set aside the deed recorded April 25, 1913. In this action a lis pendens was filed and recorded. Shortly thereafter, on May 6, 1915, the trust deed, dated November 18, 1905, was recorded, and soon after, on June 5, 1915, a deed from the trustees was executed to John Moran,

for which appellants claim Moran paid one thousand dollars. In September, 1915, the action was tried and the deed of 1913 was ordered canceled.

But, on July 29, 1915, plaintiff had started this action to set aside the trust deed of 1905 and the deed to Moran, alleging that they were made without consideration and to hinder, delay, and defraud creditors, and that John Moran took his dced with notice of the creditor's claim and in furtherance of a conspiracy to defraud said creditor.

At the conclusion of the trial the court made its findings, among which were the following: (1) That the trust deed was made without consideration and for the purpose of defrauding creditors at a time when the grantor, Sarah B. Hunter, was insolvent; (2) That the deed to John Moran was made without consideration and for the purpose of hindering, delaying, and defrauding the creditors of Sarah B. Hunter; (3) That John Moran took said deed in pursuance of a conspiracy to defraud the creditors of the estate of Sarah B. Hunter; (4) That the trust deed and the deed to John Moran were recorded for the purpose of hindering, delaying, and defrauding creditors of Sarah B. Hunter, deceased; (5) That Sarah B. Hunter owned the property in controversy on January 23, 1913, the date of the deed to Laura Newman, declared canceled in the prior action.

The main complaint of appellants is that the above findings are not supported by the evidence.

The finding as to the said trust deed is the first consideration inviting attention. As to this, it is the contention of appellants that "there is no evidence that the trust deed was made without consideration, or that Sarah B. Hunter made the trust deed for the purpose of defrauding her creditors, or that she was at that time insolvent." The position is taken in contemplation of the statutory inhibition of what has been characterized as "actual fraud” and also of " constructive fraud." The former is referred to in section 3439 and the latter in section 3442 of the Civil Code. More strictly speaking, however, the latter prescribes a rule of evidence as to what shall indubitably constitute fraud. In other words, if a transfer of property is made "without a valuable consideration" and while the grantor is insolvent or contemplates insolvency, the indisputable presumption follows that the transaction is fraudulent and the deed may be

set aside at the instance of a creditor. Regarding this phase of the case first, we may observe, the contention of appellants is that the recitals in the trust deed were the only evidence offered as to the consideration for which the deed was given, and these recitals are conclusive that such consideration was valuable. Thus it appears therein: "Now therefore, in consideration of the premises and of the love and affection which the said party of the first part has and bears unto the said parties of the third part and for their better support, maintenance and protection as well as in consideration of the sum of one dollar in lawful money of the United States and other good and valuable consideration which the said party of the first part acknowledges to have received of and from said parties of the third part," etc. Appellants made no attempt to controvert said recital, and hence it could not be held that the transfer was "without valuable consideration." While the express declarations of the deed as to the consideration may be contradicted and controlled by parol evidence, if satisfactory, there was no such evidence offered herein, and there is no sufficient support, therefore, for the finding "that the said purported trust deed dated November 18, 1905, was without consideration." It will not be disputed that the burden of proof was upon plaintiff to overcome the proper interference from said recital, and it is equally plain that in this respect his position is vulnerable. As to the necessity for such proof on his part, we may refer to section 1615 of the Civil Code. (Anthony v. Chapman, 65 Cal. 73, [2 Pac. 889]; Duffy v. Duffy, 104 Cal. 602, [38 Pac. 443].)

With equal earnestness appellants urge that the proof fails. to make out a case contemplated by said section 3439. To make the instrument fraudulent under that statute there must be the intent in the mind of the grantor "to delay or defraud any creditor or other person of his demands. This is undoubtedly a question of fact and not of law, and the burden of proof is upon the complaining creditor to show that the conveyance was made with such intent. (Schell v. Gamble, 153 Cal. 449, [95 Pac. 870].) The only creditor at the time. was E. Franck & Co. and the amount of the indebtedness was $640.46. This was paid afterward, and it is claimed that this furnishes conclusive evidence that at the time of the execution of the deed she had no intention of defrauding her creditor. The principle, however, is not limited to the debt