[Syllabus Material]          Appeal from the District Court of the Fourth Judicial District, City and County of San Francisco.

         This action was brought originally by Spanagel against Treadway and Dellinger, to set aside, as fraudulent, a deed made by Treadway to Dellinger for four fifty-vara lots in San Francisco. On the twenty-fourth of October, 1861, while Treadway was the owner in fee of the premises in suit, and while he was indebted to the plaintiff and to others for borrowed money, he executed a conveyance of the property to Dellinger without consideration, and to defraud his creditors, and the fraud was participated in by Dellinger. In January, 1862, the plaintiff commenced an action against Treadway to recover the money due him, and he attached the land in controversy to secure the payment of the judgment he was seeking. Subsequently, he obtained a judgment, in pursuance of which the property was sold by the Sheriff, the plaintiff becoming the purchaser; and no redemption having been effected, the Sheriff's deed passed to the plaintiff, Spanagel. In January, 1863, Spanagel claiming the legal title by virtue of the deed so obtained, brought this action to remove the cloud cast upon his title by the deed to Dellinger. In August, 1863, he filed an amended and supplemental complaint against the same defendants, and adding as defendants J. S. Ellis, Sheriff of San Francisco, and J. W. Reay, in which, after re-stating the foregoing facts, he alleged further that prior to the conveyance to Dellinger, an attachment suit had been commenced by one Davis, a creditor of Treadway, against Treadway, in which judgment was obtained by Davis, and under it two of the lots in controversy were, on the nineteenth of July, 1862, sold by the Sheriff to one Roper; that on the seventeenth of January, 1863, Dellinger, as successor in interest to Treadway, redeemed from the Sheriff's sale under the Davis judgment; that on the same day the plaintiff, intending to effect a redemption from the sale, if one had not already been made, inquired of the Sheriff, Ellis, as to the matter, and was informed that Dellinger, as successor in interest to Treadway, had redeemed; and relying upon such information, took no further steps to redeem the lots; that two days thereafter--the nineteenth--Reay, with full knowledge of the redemption and of the fraudulent character of the conveyance to Dellinger, obtained from Roper an assignment of his Sheriff's certificate of sale, and also procured Dellinger to execute and deposit with one Sawyer, as an escrow, a deed for all his title in the four lots; that on the twentieth of January, Reay and Dellinger went together to the Sheriff's office and withdrew the redemption money deposited by Dellinger; that these proceedings took place during the pendency of the suit, and after the filing of lis pendens; and that Reay, having received and recorded the deed from Dellinger, and pretending that the lots had not been redeemed, had presented the certificate of sale under the Davis judgment, and demanded from the Sheriff a deed to the three lots. The plaintiff asked that Reay and Ellis be made parties to the suit, and that they be enjoined, the one from making and other from demanding the deed under the Davis judgment. In October, 1863, Reay and Ellis, after demurring, answered. Reay denied the material allegations as to the fraudulent character of the deed to Dellinger; denied notice of fraud, and the redemption, and alleged that the redemption money was withdrawn by Dellinger before the time for redemption had expired. Ellis also denied that the redemption had been effected. Dellinger and Treadway also answered. A trial was had, and judgment was rendered against all the defendants. Reay and Ellis moved for a new trial; it was denied, and they appealed. The order denying the new trial was reversed, and a new trial was ordered. (38 Cal. 278.) The judgment against Treadway and Dellinger was acquiesced in.

         After the new trial was granted, in November, 1870, J. B. Townsend, by leave of the Court, filed a petition of intervention, alleging that he had acquired Spanagel's title to the undivided half of two of the lots, to the whole of another, and asking to be admitted as a co-plaintiff with him. He also set out as a matter of supplement, that since the joining of issue on the " amended and supplemental" complaint, Spanagel had recovered a judgment against Treadway and Dellinger, declaring the deed in controversy fraudulent and void, as against him; that Reay's title was acquired during the pendency of the suit in which such judgment was rendered, and after the filing of a notice of lis pendens in it, as well as with actual notice of the fraudulent character of Treadway's deed, and of the pendency of the suit to set it aside; claimed that Reaywas consequently bound by the judgment, and prayed, in addition to the relief asked in the complaint, that Reay be decreed to be estopped by the judgment against his grantors, Treadway and Dellinger. Spanagel filed a second " supplemental complaint," setting up the same supplemental matter as that in Townsend's intervention.

         The Court made an ex parte order allowing Townsend to intervene. The defendant moved to strike out Townsend's intervention as irregular, because leave to file it was granted ex parte. The motion was denied. Reay and Ellis filed a general demurrer to the petition of intervention and to the supplemental complaint. The demurrers were overruled and they answered. On the 21st of October, 1870, Reay and Ellis applied for leave to amend their original answer, which had been filed October 16th, 1863, so as to change the admission therein, that the money intended for the redemption of the lots sold under the Davis judgment was deposited with the Sheriff, to an allegation that it was deposited with one Struver, who was a book-keeper of the Sheriff, and not a deputy. The applicants represented to the Court that they had become better acquainted with the facts of the case since the filing of the first answer, and deemed it advisable to make the change, and they claimed that they had been prevented by the appeal from the first judgment from applying sooner. The Court refused the motion on the ground that Reay having admitted in a verified answer the deposit of the money by Dellinger with the Sheriff, was bound by the admission. Judgment was rendered, declaring the deed from Treadway to Dellinger fraudulent and void, as against Spanagel and Townsend; that the redemption from the sale under the Davis judgment was effected by Dellinger as successor in interest to Treadway, and was valid; and enjoining Ellis from executing a deed to Reay. The defendants, Reay and Ellis, appealed.

         COUNSEL