Hopkins

This is an action to have a certain assignment of the interest of defendant Harriette Macnider, in her deceased father's estate, declared void. Plaintiff had judgment from which and from the order denying their motion for a new trial, defendants appeal. It is alleged in the amended complaint that, on August 18, 1908, the defendants executed and delivered to plaintiff their promissory note for $1,679.40 and that, on August 2, 1910, plaintiff obtained a judgment against defendants, in an action upon said promissory note, for the sum of $1,702.40 and that said judgment is now in full force; that, on August 2, 1910, execution issued on said judgment against the property of defendants and was duly served on the land hereinafter referred to and became a lien thereon on August 4, 1910; that on September 12, 1909, defendant Harriette Macnider executed and delivered to defendant White an assignment of all her property, to wit, all of her right, title, and interest in the estate of her father, John C. Haskell, deceased, by which the said Harriette directed that the same be "distributed to and fully and absolutely vested in the said R. J. White, as the same would have been distributed to and…

A rehearingis asked on the ground that in the original opinion it was held: First, that the action was a collateral attack upon a judgment; second, that the judgment *249 in the action grants relief in excess of that prayed for; and, third, that the findings are not supported by the evidence.

Upon a re-examination of the matter we agree with the respondent that plaintiff was not precluded from attacking the assignment on the ground of fraud although the land had been distributed to defendant White in probate proceedings.

Jenner v. Murphy, 6 Cal. App. 434 , [ 92 Pac. 405 ]; More v. More, 133 Cal. 489 , [ 65 Pac. 1044 ], and other cases now for the first time called to our attention in the ease, we think sustain plaintiff’s contention. We therefore withdraw from the original opinion all discussion on that branch of the case. The second point or ground was not at any time given serious consideration and is unnecessary to the decision. The decision was rested entirely on our conclusion that the evidence is insufficient to support the findings and upon that' point nothing in the petition for a rehearing creates, in our minds, a doubt of the correctness of our conclusions.

The…

This is an action to have a certain assignment of the interest of defendant Harriette Macnider, in her deceased father’s estate, declared void. Plaintiff had judgment from which and from the order denying their motion for a new trial, defendants appeal.

It is alleged in the amended complaint that, on August 18, 1908, the defendants executed and delivered to plaintiff their promissory note for $1,679.40 and that, on August 2, 1910, plaintiff obtained a judgment against defendants, in an action upon said promissory note, for the sum of $1,702.40 and that said judgment is now in full force; that, on August 2, 1910, execution issued on said judgment against the property of defendants and was duly served on the land hereinafter referred to and became a lien thereon on August 4, 1910; that on September 12, 1909, defendant Harriette Macnider executed and delivered to defendant White an assignment of all her property, to wit, all of her right, title, and interest in the estate of her father, John C. Haskell, deceased, by which the said Harriette directed that the same be “distributed to and fully and absolutely vested in the said R. J. White, as the same would have been distributed to…