Valentine v. Richardt , 2 Silv. Sup. 579 ( 1889 )

Dykman, J.

This is an action for the recovery of a judgment against the defendant for money and other personal property alleged to have been fraudulently obtained from the mother of the plaintiff by the defendant. It is true the complaint demands an accounting, but that prayer is unnecessary and immaterial, and the action is based upon the fraudulent obtainment of the money and personal property from the deceased woman. The claim has been assigned to the plaintiff by the administrators of the deceased, and he is in a position to maintain the action. An order of arrest was granted against the defendant, which was subsequently vacated, and plaintiff has appealed from the last order. If the defendant obtained by fraud from the mother of the plaintiff upwards of $10,000 of personal property, the law immediately implied a promise on his part to account to her for the same, and at any time thereafter she could have maintained an action against him upon such implied contract for the recovery of the property. This rule is applicable to personal property as well as money. The conclusion is thus easily reached that by implication of law the defendant contracted a debt when he wrongfully obtained the property from the deceased, and by subdivision 4 of section 549 a defendant may be arrested “in an action upon contract, express or implied, * * * where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. ” So that a simple allegation in a complaint that a defendant was guilty of a fraud in contracting or incurring the liability upon which the action is based is sufficient to justify an arrest in the action. The complaint in this action contains such a positive allegation, and, if it be requisite to establish a fraud in the procurement of the money and property by the defendant, such fraud is manifested by the facts which prove its obtainment. If it was received by the defendant from the deceased, the surrounding circumstances all conspire to prove its procurement by fraud. Our conclusion is that the order of arrest was properly granted, and that the order vacating the same was erroneous, and should be reversed, with $10 costs and disbursements.