position as if the contract had not been made. En. March 21, 1872. Cal.Rep.Cit. 94, 58; 98, 499; 109, 426; 114, 168; 120, 511; § 3408. Court may require party rescinding to do equity. On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require. En. March 21, 1872. Cal.Rep. Cit. 94, 58; 98, 499; 98, 502; 120, 511; 123, 378. § 3412. 3413. § 3414. § 3412. When cancellation may be ordered When cancellation may be ordered. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. En. March 21, 1872. Cal.Rep.Cit. 132, 697. 59, 197; 79, 445; 83, 238; 102, 631; 126, 474; Rescission of contracts: See ante, secs. 1688 et seq.; 3406 et seq. Removing cloud on title: See sec. 738, Code Civ. Proc. Cancellation and alteration of instruments by parties thereto See ante, secs. 1697 et seq. § 3413. Instrument obviously void. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section. En. March 21, 1872. Cal.Rep.Cit. 55, 566; 79, 445. § 3414. Cancellation in part. Where an instrument is evidence of different rights or obligations, it may be canceled in part, and allowed to stand for the residue. En. March 21, 1872. Cal.Rep.Cit. 55, 566; 86, 251. § 3420. Preventive relief, how granted. Preventive relief is granted by injunction, provisional or final. En. March 21, 1872. Proceedings in other courts: Post, sec.3423. Mortgage.-Injunction to restrain party in possession from waste during foreclosure suit: Code Civ. Proc., sec. 745. Enjoining nuisance: See Code Civ. Proc., sec. 731. § 3421. Provisional injunctions. Provisional injunctions are regulated by the Code of Civil Procedure. En. March 21, 1872. Provisional injunctions: See Code Civ. Proc., secs. 525 533. § 3422. Injunction, when allowed. Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: 1. Where pecuniary compensation would not afford adequate relief; 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, 4. Where the obligation arises from a trust. En. March 21, 1872. Cal.Rep.Cit. 64, 473; 113, 276; 117, 381. Subd. 3-117, 380. § 3423. Injunction, when not allowed. An injunction cannot be granted: 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings. 2. To stay proceedings in a court of the United States. 3. To stay proceedings in another state upon a judgment of a court of that state. 4. To prevent the execution of a public statute by officers of the law, for the public benefit. 5. To prevent the breach of a contract, the performance of which would not be specifically enforced. 6. To prevent the exercise of a public or private office, in a lawful manner by the person in possession. 7. To prevent a legislative act by a municipal corporation. En. March 21, 1872. Am'd. 1873-4, 267. Cal.Rep.Cit. 117, 378. 79, 548; 117, 379. Subd. 1-117, 378. Subd. 2Subd. 3-117, 378. Subd. 475, 181. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. Title I. General Principles, §§ 3429-3433. II. Fraudulent Instruments and Transfers, §§ 34393442. III. Assignments for the Benefit of Creditors, §§ 34493473. 3431. 3432. 3433. Contracts of debtor are valid, Payments in preference. Relative rights of different creditors. § 3429. Who is a debtor. A debtor, within the meaning of this title, is one who, by reason of an existing obligation, is or may become liable to pay money to another, whether such liability is certain or contingent. En. March 21, 1872. Cal.Rep.Cit. 68, 12; 112, 490; 121, 25; 132, 465. § 3430. Who is a creditor. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money. En. March 21, 1872. Cal. Rep. Cit. 112, 490; 121, 25; 132, 465. § 3431. Contracts of debtor are valid. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. En. March 21, 1872. Cal.Rep.Cit. 127, 312; 135, 158. § 3432. Payments in preference. A debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in preference to another. En. March 21, 1872. Cal.Rep.Cit. 82, 135; 83, 309; 100, 631; 104, 266; 108, 85; 127, 84; 127, 137; 128, 660; 135, 158. Preferring creditor: Post, sec. 3457, subd. 1. § 3433. Relative rights of different creditors. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons. En. March 21, 1872. Cal. Rep.Cit. 113, 466; 114, 541; 119, 296; 127, 84. Marshaling of assets: See ante, sec. 2899. § 3439. § 3440. § 3441. § 3442. TITLE II. FRAUDULENT INSTRUMENTS AND TRANSFERS. Transfers, etc., with intent to defraud creditors. Creditor's right must be judicially ascertained. § 3439. Transfers, etc., with intent to defraud creditors. Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. En. March 21, 1872. 69, 250; 75, 187; 84, 508; 88, 397; 83, 237; 83, 238; 84, 245; 89, 289; 94, 188; Cal.Rep.Cit. 84, 249; 114, 454; 114, 456; 114, 457; 114, 458; 114, 535; 114, 536; 115, 273; 117, 148; 128, 108; 131, 627; 135, 125; 135, 160; 138, 250. Arrest: See Code Civ. Proc., sec. 479. Fraudulent conveyance: See Pen. Code, secs. 154, 531. § 3440. Certain transfers presumed fraudulent. Every transfer of personal property, other than a thing in action, or a ship or cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry and respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things |