(50 Cal. App. 180) In Doudell v. Shoo, 20 Cal. App. 424, 129 Pac. 478, the subject received careful con- KOPPERUD v. COOKSON et al. (Civ. 2133.) sideration by this court. Therein it was held fornia. Nov. 26, 1920.) that, since the principal relief sought was the (District Court of Appeal, Third District, Caliestablishment of the existence of the partnership and for an accounting, the prayer for an injunction and the appointment of a receiver was only in aid of the main relief sought, and that there was no misjoinder of causes of action. In Bremner v. Leavitt, 109 Cal. 130, 41 Pac. 859, we have this general statement of the controlling principle in such cases: 1. Bills and notes 525-Evidence held to prove purchase of note in good faith. Holder held to have acquired a note as indorsee in good faith within Civ. Code, §§ 3137, 3140, as amended by St. 1917, p. 1541, making defense of no consideration unavailable against an indorsee in due course who has acquired a note in good faith. 2. Appeal and error 1010(1)—Findings war ranted by evidence not disturbed. Findings warranted by the evidence will not "In an action for an accounting between part ners, all matters relating to and growing out of the partnership relation of the parties, and for which an accounting is sought, however varied they may be in their nature, taken to-be disturbed. gether constitute but a single cause of action, and may properly be embraced in a single count in the complaint." The case at bar differs somewhat in its facts from any of the foregoing citations, but we think it presents a similar situation. The technical terminology being ignored, the case is simply one, after the dissolution of a partnership, against several parties who are in possession of some of the partnership property and claiming the same, to have it determined that said property belongs to said partnership and to subject it to the payment of the partnership debts, and to have the residue distributed to those entitled to it. Necessarily we assume that the facts are as stated in the complaint. It may be that after issue joined it would be advisable and proper to try separately the issues that may be raised by the different parties, but we think the defendants should be put to their answer. We may state that respondents devote nearly their entire argument to the proposition that the complaint does not state a cause of action, and this is all that is said upon the point of misjoinder: "We respectfully submit that the amended complaint therefore states no facts giving the plaintiff any grounds for relief against the defendant O'Dell as administrator, and that his demurrer was therefore properly sustained, and that the demurrer of the defendant Storey was also properly sustained upon the ground that he has been improperly joined with defendant O'Dell, with whom he is in no wise united so far as the subject of the action is concerned." Appeal from Superior Court, San Joaquin County; J. A. Plummer, Judge. Action by A. H. Kopperud against S. T. Cookson and others. Judgment for plaintiff, and defendants appeal. Affirmed. Geo. F. McNoble, W. Goodwin Williams, J. Le Roy Johnson, and M. P. Shaughnessy, all of Stockton, for appellants. Ostrander & Carey, of Oakland, for respondent. BURNETT, J. The action was brought by the indorsee of a promissory note given in consideration of the sale of a certain stallion. The defense is that there was a failure of consideration by reason of the false and fraudulent representations made by the seller as to the age, soundness, and procreative ability of the horse, and that— "A pretended indorsement or assignment of said note was made by the said Norm W. Thompson (the payee) to plaintiff, but said invoid; that plaintiff, at the time said note was dorsement or assignemnt was fraudulent and indorsed and assigned to him, knew that the same was without consideration and void, and knew that the said stallion was unsound and diseased in body, and was worthless to said defendants, and said plaintiff did then and there conspire with said Norm W. Thompson to cheat and defraud the said defendants by having said note indorsed by said Norm W. Thompson to said plaintiff for the purpose of preventing the said defendants from making their defense of want of consideration when suit should be brought upon said note." It may be that the defendants were "stung," as one of the witnesses expressed it; it is quite probable, indeed, that Thompson perpetrated a fraud in inducing the purchasers to rely upon his representations as to the character of the horse. But be that as it may, there can be no serious doubt that the judgment of the trial (194 P.) court must be upheld upon the other ground that plaintiff was "an indorsee in due course," in other words, that he "in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and without knowledge of its actual dishonor," acquired the note duly indorsed to him. Section 3123, Civ. Code. The learned trial judge gave to this question careful consideration, as is apparent from his opinion filed in the case. He points out that at the time of the transaction the “Uniform Negotiable Instrument Law" had not become operative, but that no substantial change was effected thereby as far as this question is concerned, and that the case is governed by the principles announced in sections 3137 and 3140 of the Civil Code as amended by the Legislature of 1917 (St. 1917, p. 1541). He proceeds: where the note was executed. The apparent reason for Thompson's presence in the city of Oakland to visit his brother-in-law, who was an employee of the plaintiff, answers any objection that may be made as to the transaction occurring in Oakland rather than in Manteca. So far as the plaintiff was concerned, Thompson was there for a legitimate and valid reason. His presence under such circumstances would not call for inquiry or arouse any suspicions. That Thompson was taking notes from farmers where he had sold different stallions is also true. That the different notes ran over a considerable period of time, and thus deprived Thompson of the use of ready money, appears also to be a fact. And, considering that the note in controversy had something over a year to run, and that the use of 90 per cent. of its face value would mean more to Thompson, if paid then, than the full amount of the note obtained after a delay of more than a year, the court cannot very well come to the conclu"That the plaintiff acquired the note in ques- sion that a 10 per cent. reduction was at all tion in due course is admitted. That he acquir-out of the ordinary, or such as to raise an ined it in good faith is denied, and the basis of denial is placed upon the circumstances that he purchased the note at a 10 per cent. discount, and made no inquiry of the makers of the note as to the consideration and the circumstances leading up to its execution by them." He declares that if plaintiff had made such inquiry he probably would not have discovered any fact indicating the invalidity of the note, but at most that the defendants had paid for the horse more than he was worth, but that it was worth more than the note which he was about to buy. Thereupon follows this: "But the law relating to negotiable instruments does not necessitate any such action on the part of the intending purchaser of such paper. If he knows of any circumstances affecting the instrument, then he is chargeable therewith, and if anything occurs in the course of the negotiation with the persons with whom he is dealing, or if anything appears upon the face of the instrument which would arouse the suspicion of a reasonable person as to the infirmity of the note, then his failure to make inquiry to ascertain the truth concerning the instrument would amount to bad faith. "It may be here stated that the court has found nothing in the testimony indicating that at the time of the purchase of the note anything occurred or anything appeared which would have caused a reasonable person, in the situation of the plaintiff, to question the validity of the instrument, or that it was not executed for a good and sufficient consideration "It is urged that the purchase of the note at a 10 per cent. discount was of itself sufficient to cast a cloud upon the transaction, and also the fact that the transaction took place between 80 and 100 miles distant from the place ference that the plaintiff knew he was buying, or ought to have known that he was buying, a tainted instrument." The trial judge then called attention to the distinguishing features of the several cases upon which appellant relies, and, after citing Eames v. Crosier, 101 Cal. 260, 35 Pac. 873, Blochman Commercial & Savings Bank v. Moretti, 177 Cal. 256, 170 Pac. 419, Citizens' Bank v. Stewart, 22 Cal. App. 91, 133 Pac. 337, as enunciating the rule to be applied in such instances, he concluded: "From what has been said, the conclusion is unavoidable that, so far as the plaintiff is concerned, it must be held that he is a purchaser in good faith, that the note was taken in the ordinary and usual course of business a year or more before its maturity, without notice of any defenses, and that an adequate consideration was paid therefor, and is entitled to judgment in his favor, irrespective of any fraudulent practices on the part of Thompson in its procurement." [1, 2] It seems unnecessary to add anything to what was stated by the trial judge. Even if we concede that the evidence might support a finding that plaintiff was not a purchaser in good faith, it cannot be gainsaid that the court was amply warranted in reaching a contrary conclusion. The trial judge was in a position to gauge properly the testimony of the plaintiff, and it would be presumptuous in us to say that he was misled. The judgment is affirmed. We concur: PREWETT, Presiding Justice pro tem; HART, J. (50 Cal. App. 241) 1. Judgment 892-Satisfaction held not entitled action A writing entitled "Satisfaction and Release of Judgment against Defendant E. S. F.," in the body of which it was stated that $500 had been paid by E. S. F., and acknowledging "full satisfaction of the judgment rendered in the above* and the clerk of said court is hereby authorized and directed to enter in the proper records full satisfaction of said judgment," held not conclusive as against a claim by the judgment creditor that the $500 was only paid on account of the judgment and not in full satisfaction thereof. tiff on the 15th day of July, 1914. Thereafter, on the 11th day of August, 1919, Finney, one of the makers, paid to the plaintiff $500 and plaintiff executed a writing which was entitled "Satisfaction and Release of Judgment against Defendant E. S. Finney," and in the body of which it was stated that, $500 having been paid by Finney, Leachman acknowledged "full satisfaction of the judgment rendered in the above-entitled action, * * and the clerk of said court is hereby authorized and directed to enter in the proper records full satisfaction of said judgment." At that time a sum considerably in excess of the $500 mentioned was due to the plaintiff under the judgment. Thereafter the plaintiff brought action to renew the judgment as to the respondent and the other makers of the note except Finney, and default was duly entered against respondent for not appearing and answering the complaint. Thereafter respondent moved the court to set aside the judgment on the ground that the judgment in suit had been fully satisfied, and referred to the records and files in the former action, which included the written satisfaction of judgment hereinbefore referred to. No ground of excusable neglect, such as is permitted to be made under section 473, Code of Civil Procedure, was urged; respondent taking the bald position that she was entitled to the relief sought upon referring to the court for inspection the written satisfaction of judgment as filed in the first action. As we have noted, the court not only granted this motion, but entered an order upon the application of respondent, dismissing the suit. Plaintiff, in his complaint in the action to renew the judgAppeal from Superior Court, Los Angeles ment, set out fully the facts as to the County; Grant Jackson, Judge. 2. Judgment 898 (4)-Satisfaction of judgment must be pleaded by defendants in action to renew. Where judgment was rendered against three defendants on note, and, upon payment of part of the amount thereof by one defendant, a satisfaction in full was filed with the clerk, and the judgment creditor later brought action to renew the judgment as to the other two defendants, it was necessary that defendants in the second action plead such satisfaction and secure findings and judgment thereon, if they wished to rely on it or a satisfaction in full. 3. Judgment 138(1)-Defendant relieved from default only by satisfying condition required by statute. After a default has been entered against a defendant, he can only be relieved therefrom by satisfying a condition required under Code Civ. Proc. § 473. Action by Alonzo Leachman against John M. Cage, Hattie L. Mohrenstecher, as executrix of the estate of George Mohrenstecher, deceased, and others. From an order vacating a default judgment for plaintiff against the executrix and dismissing action, plaintiff appeals. Reversed. Goodspeed & Pendell, of Los Angeles, for appellant. Lewis Cruickshank and Vincent B. Vaughan, both of Los Angeles, for respondent. JAMES, J. Plaintiff takes this appeal from an order made by the trial court vacating a default entry and judgment entered thereon against defendant Mohrenstecher, executrix. An appeal is also taken from an order made dismissing the action. [1-3] The facts are these: Respondent's testator, one Finney, and three other persons, were the makers of a promissory note of which the plaintiff was the holder. Judgment was entered on that note against all of the defendants and in favor of the plain-I amount due and as to the amount paid by Finney, referring to the latter as a payment on account only. We think that the complaint tendered an issue as to the nonpayment in full of the judgment, and that the written satisfaction as filed was not conclusive as to that issue. Furthermore, assuming that the written satisfaction would have such effect, it was necessary to plead the same in the second action and secure findings and judgment thereon. Deland v. Hiett, 27 Cal. 611, 87 Am. Dec. 102. Assuming the correctness of this position, it had been entered against respondent she would necessarily follow that after default could only be relieved therefrom by satisfying a condition required under section 473, Code of Civil Procedure. This her counsel admits she did not do. The order vacating the default and judgment should not have been granted. The order and judgment of dismissal are reversed. We concur: CONREY P. J.; SHAW, J. (194 P.) (49 Cal. App. 764) I. Fraudulent conveyances 87 (1) Cancellation of pre-existing indebtedness is valuable consideration. Cancellation of pre-existing indebtedness is a valuable consideration for a conveyance. 2. Fraudulent conveyances 113(1) Deed held not void as a prohibited secret parol trust to convey. Where in consideration of cancellation of pre-existing indebtedness to wife husband conveyed land to his wife's sister, and the sister took with the resulting trust for the wife, the deed was not void as a prohibited secret parol trust to convey, for the cancellation of preexisting indebtedness was a valuable consideration, and if the grantor had paid the debt to his wife, and she had paid the money for the conveyance, it would not be open to attack under Civ. Code, § 853; the law not requiring the mere act of passing the same money backward and forward under section 3532. 9. Fraudulent conveyances 115(1) — Preferential deed not void. Mere false statements by a debtor to his creditor do not warrant the vacation of a preferential deed made to another creditor; for, under Civ. Code, § 3442, a debtor may prefer one creditor to another in a case where the bankruptcy statutes do not apply. 10. Fraudulent conveyances 271 (3)-Proof of grantor's fraudulent intent casts the burden of proof on the grantee. Proof that the grantor had a fraudulent intent in making the conveyance casts the burden of proof on the grantee to show a valuable consideration, and, when this burden is sustained, the burden of proof again shifts to one attacking the conveyance to show that the grantee had knowledge of the grantor's fraudulent intent. 11. Fraudulent conveyances 74 (2)-Inadequacy of consideration is circumstance tending to show participation in fraud. Mere inadequacy of consideration is not of itself fraudulent, but is only a circumstance tending to show knowledge of fraud or participation in it. 12. Appeal and error 842 (3)—Question of fraudulent intent one of fact. Under Civ. Code, § 3442, the question of in case of a conveyance attacked as in fraud fraudulent intent of the grantor and grantee of creditors is one of fact, and the determination of the trial court is binding on the appellate court. Where a conveyance by a husband to his wife's sister for the latter's benefit was attack-dino County; Rex B. Goodcell, Judge. ed as fraudulent, evidence held sufficient to establish the adequacy of the consideration, which was the cancellation of a pre-existing debt. Appeal from Superior Court, San Bernar 6. Appeal and error 944-Question of adequacy of consideration calls for exercise of judicial discretion. The question of the adequacy of the consideration for an alleged fraudulent conveyance calls for the exercise of judicial discretion, and, to warrant interference with such discretion, the disparity between the ascertained value of the lands and the price paid must be so clear as to shock the moral sense at first glance. Action by the Commercial National Bank of Los Angeles against C. S. Roberts and others. From a judgment for defendants, plaintiff appeals. Affirmed. James, Smith & McCarthy, of Los Angeles, for appellant. Daley & Byrne, of San Bernardino, for respondents. BRITTAIN, J. The plaintiff sued to have certain conveyances set aside as fraudulent and appeals from the judgment against it. The real basis of the attack is that the evi7. Appeal and error 931(1) All presump-dence does not support the findings of fact. tions are in favor of the action of the trial Interwoven with the argument upon this court. question the appellant makes certain contentions regarding the law. It will tend to clarity to dispose of these contentions in the Every reasonable presumption must be indulged in favor of the action of the trial court, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes first instance. Three deeds through which | sequent to that deed could possibly have Roberts' title to the land in controversy be- upon the case is that they might tend to show came vested in his wife, the respondent fraud or guilty knowledge connected with Mida Roberts, are attacked, and a sheriff's deed under execution against Roberts is relied upon by the appellant, which maintains that, apart from any question of fraud, each of the three deeds is void, and that the sheriff's deed gave to the appellant legal title. [1, 2] The first deed in the series is in the ordinary form of grant, for an expressed consideration of $10, from Roberts to a Mrs. Buechner, a sister of Mrs. Roberts. The trial court found that the real consideration for the conveyance was a pre-existing debt of Roberts to his wife, and that the conveyance was made to Mrs. Buechner, who paid no part of the consideration, with a resulting trust for Mrs. Roberts. The appellant contends that, apart from any question of fraud, or lack of consideration, or nonexistence of the debt, the deed is void as a prohibited secret parol trust to convey. Cases are cited announcing the familiar rule that to support such a resulting trust the consideration for the conveyance must have been paid by the beneficial owner. Assuming for the present purpose the existence of the debt from Roberts to his wife, there could be no contention such as the appellant makes if Roberts had paid the amount of the debt in money to his wife and immediately she had paid him the same money as the consideration for his conveyance to Mrs. Buechner. Civ. Code, § 853. The law does not require so idle an act as the mere passing back and forth of the same coin. Civ. Code, § 3532. Cancellation of a pre-existing indebtedness is a valuable consideration for a conveyance. Schulter v. Harvey, 65 Cal. 158, 3 Pac. 659; Riley v. Martinelli, 97 Cal. 582, 32 Pac. 579, 21 L. R. A. 33, 33 Am. St. Rep. 209. If the transaction was untainted by fraud the entire title of Roberts was divested by the conveyance of the legal title to Mrs. Buechner, subject to the resulting trust for Mrs. Roberts. Still assuming that the transaction was not fraudulent, after Roberts divested himself of title, neither he nor the appellant, claiming under a subsequent execution sale, is at all interested in what became of the title, or whether or not subsequent transfers were valid or fraudulent; therefore no consideration need be given to the appellant's contentions concerning the subsequent deeds from Mrs. Buechner to Roberts' sister, Mrs. Brillhart, and from her to Mrs. Roberts. On the other hand, if the first deed was fraudulent, the subsequent deeds are similarly tainted and fall with it, and in that event it is unnecessary to consider the particular attacks of the appellant directed to them. If the entire title passed from Roberts under the first deed, the judgment must be affirmed; if no title passed from Roberts because the first deed was fraudulent, the judgment must be reversed. The only bearing transactions sub the original transaction. The final contention of the appellant that, because its sheriff's deed was recorded before the date of the last deed in the series, legal title vested in Mrs. Roberts under that deed, subject to the appellant's right, is wholly groundless. If by the first deed Roberts' title was divested, the appellant acquired nothing by the sheriff's deed, and its recordation added no new right. The only other matter to be considered is the attack on the sufficiency of the evidence. The first deed was dated November 20, 1914. The appellant, in its brief, says: "If the deed was actually executed on the day of its date, and if there was a valuable and adequate consideration for it, and if there was no fraudulent intent, the deed vested title in Buechner and wiped out our attachment." The attachment was levied after the date of the deed, judgment followed against Roberts on his debt to the appellant in the attachment suit, and sale of his interest, if any, to the appellant was under execution levied on that judgment. Section 3442 of the Civil Code, in so far as it relates to the matters under discussion, provides that the question of fraudulent intent is one of fact, and not of law; nor can any transfer be adjudged fraudulent solely on the ground that it was not made for a valuable consideration, provided that any transfer made voluntarily or without a valuable consideration by a party while insolvent, or in contemplation of insolvency, shall be fraudulent and void as to existing creditors. From the quoted statement in the appellant's brief, if the evidence meets four requirements, the judgment must be affirmed. The four points are: (1) Execution on November 20, 1914; (2) a valuable consideration; (3) adequate in amount; and (4) lack of fraudulent intent. Taken as a whole the evidence is such that a finding in favor of the appellant on any of these facts, except perhaps the first, would have been sustained, but it does not follow that the present findings must be reversed. Bandle v. Commercial National Bank of Los Angeles, 178 Cal. 546, 174 Pac. 44. [3] On the question of execution of the deed on its date there is ample evidence. The notarial certificate showed acknowledgment on November 20, 1914, and in addition to the positive testimony of Roberts, his wife, and Mrs. Buechner, the subscribing witness and the notary testified they were present at a dinner at Roberts' house when the deed was delivered. As against this it is argued that certain suspicious circumstances were of such a character as should have prompted the trial court to reject this testimony of these five witnesses. This court, not having seen the witnesses, cannot, |