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Where one takes a voluntary absolute conveyance of valuable property, knowing that the grantor is largely in debt, and unable to pay his debts without subjecting such property to their payment, he is guilty of fraud in law against the creditors of his grantor, and the conveyance is void as against them. First Nat. Bank v. Bertschy, 9 N. W. Rep. 534.

5. EXEMPT PROPERTY. The conveyance of a homestead already exempt from exe cution that is, beyond the reach of legal process-cannot be fraudulent, (Lishy v Perry, 6 Bush, 515; Smith v. Rumsey, 33 Mich. 183; Delashmut v. Trau, 44 Iowa, 613; Carhart v. Harshaw, 45 Wis. 340;) for the conveyance of property exempt from execution cannot, under any circumstances, be made out to be a fraudulent conveyance, (Bond v. Seymour, 1 Chand. 40;) and consequently a conveyance of a homestead to the wife will be upheld. Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 Wis. 164; Legro v. Lord, 10 Me. 161; Hibben v. Soyer, 33 Wis. 319.

Exempt property is not subject to fraudulent alienation, (Derby v. Weyrich, 8 Neb. 174; Boggs v. Thompson, 14 N. W. Rep. 393; Robb v. Brewer, 15 N. W. Kep. 420; Gillespie v. Brown, 20 N. W. Rep. 632,) unless made with the intention of perpetrating a fraud upon the exemption laws. Allen v. Perry, 14 N. W. Rep. 3; Mull v. Jones, 5 Pac. Rep. 388.

6. CONSIDERATION. To sustain a deed of bargain and sale requires a pecuniary or valuable consideration. 3 Washb. Real. Prop. (3d Ed.) 321. To sustain a deed of covenant and seizin requires a good consideration. Id. "A valuable consideration means and necessarily requires, under every form and kind of purchase, something of actual value, capable, in estimation of law, of pecuniary measurement, parting with money or noney's worth, or an actual change in the purchaser's legal position for the worse." " 2 Pom. Eq. Jur. 205. Where the amount of consideration is grossly small or inadequate, it is not a valuable consideration. Worthy v. Caddell, 76 N. C. 82. In the last case the court say that "when a person causes his land to be sold on execution to defraud his creditors, and B., with knowledge of such intent, purchases at a grossly inadequate price, he is not a bona fide purchaser for a valuable consideration. A consideration named in a deed being merely nominal, the deed, as to creditors of the grantor, will be taken by the court to be voluntary." De Tastett v. Crousillat, 2 Wash. C. C. 133. See Brice v. Myers, 5 Ohio, 121. A conveyance made on a good consideration only is a voluntary conveyance. 3 Washb. Real Prop. (3d Ed.) 320. To bring a conveyance within the category of a voluntary conveyance, there must be a total want of any substantial consideration. Id.

Where the circumstances exist upon which a consideration of love and affection can be based,-as relationship within the proper degree,-and love and affection, coupled with one dollar, is the consideration for the transfer, the latter being grossly inadequate as a money consideration, the former will be regarded as the true consideration, and the only consideration. If one consideration, like money, be expressed, another, like love and affection, may not be shown, and vice versa. Burrage's Lessee v. Beardsley, 16 Ohio, 438; Hinde's Lessee v. Longworth, 11 Wheat. 213; Clarkson v. Hanway, 2 P. Wms. 203; Hildreth v. Sands, 2 Johns. Ch. 43; 3 Washb. Real Prop. (3d Ed.) 616. Where a deed purports to be for natural love and affection, it is not competent to prove that the consideration was valuable. Hinde's Lessee v. Longworth, 11 Wheat. 199. It has been held that mere moral obligations to convey are sufficient to sustain conveyance. Cottrell v. Smith, 18 N. W. Rep. 865.

(67 Cal. 543)


(No. 9,983.)

Filed September 28, 1885.


Navigable streams are public highways, and an owner of land bordering on such a stream has a right to free access thereto, and he cannot be deprived of such right without compensation; and any interference with the enjoyment thereof, as by the erection of a wharf, cutting off his right of access, is a nuisance, and may be restrained by injunction.

Commissioners' decision.

Department 2. Appeal from superior court, county of Solano. J. F. Wendell and J. & J. C. Lynch, for appellants.

L. Mizner and L. B. Mizner, for respondents.


Action to prevent the construction of a wharf, and to cause the removal of a portion thereof al ready constructed. The

plaintiffs recovered judgment; there was no motion for a new trial, and the cause comes to this court on the judgment roll alone. Upon all material issues made by the pleadings, the findings were sufficient.

Among other facts, it appears by the record that the plaintiffs are the owners of a block of land in the city of Benicia, which is bounded on the east by the navigable waters of the straits of Carquinez; that, by an act of the legislature of this state, approved March 21, 1868, "a permanent water front of the city of Benicia was established;" that by said act the easterly line of lots 10 and 14 of said block of land were declared to be a part of said permanent water front; that the defendants were attempting to build a wharf out into the straits of Carquinez, which, if constructed, would approach to within about three feet of the easterly line of lots 10 and 14 of plaintiff's block of land, and would run parallel with such line for about 60 feet; would be an obstruction to the free use by plaintiffs of said block of land, and permanently interfere with the comfortable enjoyment thereof. It would be a nuisance to the plaintiffs and their said property, and inflict on them serious and irreparable injury; that the piles already driven by the defendants at the time of the commencement of the action, and of the restraining order issued by the court below, constitute a material interference with the enjoyment by the plaintiffs of their said property, and was, and is, and if not restrained will continue to be, a nuisance to them and said property.

There was no compensation "first made or paid" plaintiffs for the damages to their said property, as should have been done in order to meet the requirements of section 14 of article 1 of the constitution of California. Reardon v. San Francisco, 6 Pac. Rep. 317. The wharf, if built by defendants as contemplated, would deprive the plaintiffs of ingress and egress to and from their lots and the navigable waters of the state. On the eastern side of said lots the navigable waters of the straits of Carquinez are a public highway. Pol. Code, § 2348. The free access to that public water highway was a vested right and privilege that belonged to the plaintiffs, and of which they could not be deprived in the manner claimed as legal in this contention. Pol. Code, § 2919; Schulte v. Northern Pac. T. Co., 50 Cal. 592; Blanc v. Klumpke, 29 Cal. 156; Lackland v. North Mo. R. Co., 31 Mo. 181; Gould, Waters, §§ 123, 124, 149, 150, 154, and cases there cited. If the wharf of the defendants could be built, and was allowed to stand, it would preclude the plaintiffs from building any wharf as to 60 feet of their water front, declared such by law, and would prevent ingress and egress of vessels from a wharf previously built by them on another portion of their water front of said block of land, and this effect upon their land, in the absence of all compensation, would, if not prevented, result in injury grievous and irreparable, from which, as threatened, they should have relief.

It clearly appears by the findings, that the defendants were creating a nuisance, in the navigable waters of the state. Civil Code, §

3479; Blanc v. Klumpke, 29 Cal. 156. Under the circumstances of this case, it is not legal or equitable to construct and maintain the wharf as contended for by the defendants. It would be in disregard of private rights, and result in great and irreparable damage to private property, without compensation, for an ostensible public use.

There are other questions which arise, but it is unnecessary to discuss or decide them. It has been our care to examine all the many authorities cited by counsel on both sides of this controversy which were attainable, and we have read with attention their very exhaustive briefs, but we are unable to perceive in either anything which seriously militates against the views we have expressed as being conclusive of this case.

The judgment of the court below should be affirmed.

[blocks in formation]

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

(67 Cal. 526)

PEOPLE V. LA RUE and others. (No. 9,801.)

Filed September 28, 1885.


Swamp-land and reclamation districts de facto, existing under an attempted compliance with the law, and acting in good faith, may reorganize so as to form a new corporation in all respects valid; and on proceedings in the nature. of a quo warranto, the inquiry cannot be extended to a consideration and determination of the regularity of the steps by which the original districts were organized.


A corporation is presumed, in the absence of evidence to the contrary, to have the right to purchase and hold real estate.

Commissioners' decision.

Department 1. Appeal from superior court, county of Sacramento. Grove L. Johnson, W. H. Beatty, John W. Armstrong, and the Attorney General, for appellant.

A. P. Catlin, for respondents.

SEARLS, C. This is an action in the nature of quo warranto, to determine whether there is any such corporation as Reclamation District No. 407, and whether the defendants Hugh M. La Rue, Samuel Lavenson, and William Wilcox are trustees thereof. The defendants set up in their answer that two reclamation districts existed under and by virtue of the laws of the state of California, known and designated respectively as districts No. 89 and No. 215, and that swamp-land reclamation district No. 407 was formed under section 3489 of the Political Code of the state of California, by the reorganization and · consolidation of said districts 89 and 215. The cause was tried by the court without a jury, and defendants had judgment, from which,

and from an order denying a motion for a new trial, this appeal is prosecuted by the plaintiff. It was admitted at the trial that defendants were elected trustees of swamp-land district No. 407, pursuant to an order of the board of supervisors, and after due notice thereof. The whole controversy is involved in appellant's third assignment of error, which is as follows:

"The evidence is insufficient to justify the judgment in favor of defendants, because the evidence clearly shows that district No. 407 was formed out of districts No. 89 and No. 215, and that said districts No. 89 and No. 215 were never legally, or at all, organized, and that, consequently, district No. 407 was never legally, or at all, organized, and that, consequently, defendants were claiming to hold an office and to exercise a franchise that never existed."

We think the evidence sustains the assertion that districts No. 89 and No. 215 had gone through the form of organizing, and had for some years acted as swamp-land districts; that they were de facto corporations, and it seems to be tacitly conceded, though not directly admitted, that there were irregularities in their proceedings which would have been fatal to their existence in a direct attack on the part of the people. We shall, consequently, for the purposes of the decision, assume that districts No. 89 and No. 215 were de facto corporations and were not corporations de jure. Section 3489 of the Political Code provides that

"Swamp-land, levee and reclamation districts formed, organized, or erected into districts under special or general laws heretofore or now in force may reorganize and consolidate in the manner following: Whenever the owners of a majority of acres of land in each of two or more swamp-land, levee, or reclamation districts shall desire to consolidate and reorganize, they may do so by filing a notice with the county recorder of the county in which the greatest portion of the land of the districts is situated, setting forth that they desire to consolidate and reorganize. The notice must give the exterior boundaries of the said districts, the name and number of each of them, the number of acres of land that each contains, and must be signed by the persons owning the majority of acres of land in each district, and shall designate the number of acres owned by each signer in the district in which the same is situated."

The section proceeds, further, to make it the duty of the county recorder to record the notice; to make and forward to the state land register a certified copy thereof, whereupon the latter must designate a number for the reorganized district the same as provided for in original organizations, and thereafter the district so organized shall be under the operation and be governed by the general laws, and all proceedings thereafter shall be the same as in organizing districts upon original petition.

The proceedings for the organization of the present district under section 3489 of the Political Code seem to have been substantially in accordance with the requirements of that section, and of the general statutes relating to and governing the same, and unless in this proceeding the regularity of the organization of the original districts, Nos. 89 and 215, may be inquired into, the judgment of the court be

low should be affirmed. It has been determined by this court that a reclamation district is a public corporation for municipal purposes. Dean v. Davis, 51 Cal. 409. Reclamation district No. 407 is either a corporation, or it is not. The whole theory of this action proceeds upon the ground that districts No. 89 and No. 215, not having been. organized as by law provided, had no legal entity, and could not, therefore, serve as a basis upon which to organize, by consolidation, a new district, and as a consequence that No. 407 has, in the eye of the law, no existence. If it is and, at the time this action was brought, was a corporation, the action must. fail, for its sole object is to determine judicially that there was no such district, and no such offices as those claimed by defendants. The question of the reclamation of the swamp and overflowed lands of the state is one that has received much attention at the hands of the legislature; numerous statutes bearing upon the subject, and having the same general object in view, had, prior to 1878, received the sanction of the law-making power. Under these statutes a large number of swamp-land districts had been organized, governed by separate and sometimes opposite laws. The object in every case was, no doubt, to reach the same general result, and to vary the means so as to meet the requirements of different cases and classes of cases. The result of this varied legislation, however, was to so far complicate the system that no general and comprehensive rule could be formulated and adopted, and a multitude of swampland districts existed, each governed by its own special laws.

To bring all these swamp-land districts within the operation of general laws seems to have been one of the objects of the amendment of 1878, embodied in section 3489 of the Political Code. Under that section new districts are created. It provides for the filing of a notice, and prescribes the contents of such notice and the mode or number of persons by whom it must be signed. Upon recording this notice and furnishing a certified copy to the state land register, that officer is required to designate a number for the organized district, after which it shall be under the operation of and governed by the general reclamation laws of the state, and all proceedings thereafter shall be the same as though such district was organized upon an original petition. The statute does not propose any method, or delegate to any officer authority, to inquire into the regularity of the proceedings by which the original districts were formed. Indeed, it does little more than to adopt the territorial limits of the old districts as the boundaries of the new. In reason, we can see no objection to the formation of a valid corporation, under section 3489, by consolidating two or more districts existing as such in fact, and entitled to recognition as such by all the world, except the state of California, and by the state even, except in direct proceedings against it to determine its right to exercise corporate powers. The object of the law is to promote the formation of corporations for the reclamation of waste lands. It would seem, from some of the language used in the

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