The plaintiff brought his action of ejectment against Austin and his wife for a lot of land in San Francisco, with which he united a suit in equity against them and one Mansfield Compton, the object of which was to obtain a decree of the Court declaring certain conveyances investing Mrs. Austin with the title to said land fraudulent and void, and further declaring that she had no interest in the premises as against the plaintiff, and enjoining her perpetually from setting up or claiming any right, title or interest therein. From the part of the complaint setting forth the facts upon which equitable relief is sought, it appears that in March, 1856, Austin and his wife executed a deed of conveyance of the premises in controversy to Compton, which the plaintiff charges was without consideration, and made to delay, hinder and defraud creditors. That in June, of the same year, Compton, by the direction of F. B. Austin, without any consideration, therefor, conveyed the same premises to Mrs. Austin, who, since then, has pretended to claim and hold said premises as her separate property. It further appears from the complaint that on the 25th of August, 1856, Abner H. Barker recovered a judgment in the Superior Court of the City of San Francisco against the defendant, F. B. Austin, for a sum amounting to nearly three thousand dollars, which remains “ unreversed and unsatisfied and that on the 26th of November, 1860, an execution was issued bn such judgment to the Sheriff of the City and County of San Francisco, who levied upon the property, and after-wards, on the 19th of January, 1861, sold the same to Gr. W. Ryckman, to whom a certificate of sale was given ; and thereafter, on the 6th of December, of the same year, a deed was executed and delivered by such Sheriff to said Ryckman, who, on the 24th of February, 1862, conveyed the premises to the plaintiff. The complaint was duly verified.
*604Compton was served with the summons and a copy of the complaint, and having failed to answer, his default was entered. Austin and his wife appeared and filed separate answers duly verified. The only portion of these answers to which it is important to refer, is in relation to the traverse of the recovery of the judgment in the Superior Court by Barker against F. B. Austin as alleged in the complaint. It was the same in both answers. They each denied upon information and belief, “ the recovery of the said judgment in the Superior Court of the City of San Francisco ; the issue of execution on such judgment as set forth in the said complaint; the sale of said lands upon such execution ; the issue of said certificate of the said sale to the said Ryckman; the execution and delivery of the said deed of said lands by the said late Sheriff to the said Ryckman; the conveyance of the said lands by the said Ryckman to the said plaintiff.” There is no controversy respecting the sufficiency of the answers as full traverses of the matters of the complaint except as to the portion of the same above set forth in hcee verba.
When the cause came on to be tried the plaintiff’s counsel read the complaint to the Court, and then stated that the defendants’ answers respectively admitted all the material allegations of the complaint—that is, the recovery of the judgment, the issue of execution, the Sheriff’s sale under the execution, the Sheriff’s deed to Ryckman, the conveyance by Ryckman to the plaintiff, the plaintiff’s ownership of the property, and the ouster of him. by the defendants, Austin and wife, and the monthly value of the premises. The answers were then read and the Judge of the Court intimated that his opinion was in accordance with the position of the plaintiff’s counsel, but did not then decide the point. An application was afterward made for leave to amend the answer so as to obviate the objections made on the part of the plaintiff, but was denied, and the trial then proceeded.
The plaintiff offered in evidence an execution upon the judgment therein recited, obtained in said Superior Court in favor of Abner H. Barker, against Franklin B. Austin, with *605the Sheriff’s return thereon, which was the same execution and return set forth in that behalf in the complaint. To this evidence the defendants objected on the ground that the judgment upon which the same purported to have been issued had not been given in evidence. The Court overruled the objection on the ground that the judgment was admitted by the answers, and received the execution and return in evidence, to which decision the defendants severally excepted. The plaintiff then offered in evidence a deed of the lands in controversy, executed by the Sheriff to Ryckman, bearing date the 6th of December, 1861, which was recorded on the 8th of March, 1862, which deed described the judgment as “a judgment recovered in the late Superior Court of the City of San Francisco on the 25th day of August, A. D. 1856, in favor of Abner H. Barker and against Franklin B. Austin.” In connection with this, the defendants admitted that said deed was in all other respects perfect in form and substance, as alleged in that behalf in plaintiff’s complaint; but they objected to said deed being read in evidence on the following grounds:
First—That the alleged judgment on which said deed purported to be founded had not been given in evidence.
Second—That said judgment was not sufficiently described in said deed.
The Court overruled the objection and thereupon the deed was received in evidence, to which decision the defendants then and there excepted. The deed from Ryckman to the plaintiff was then given in evidence.
The parties respectively then submitted to the Court other evidence, which it is not of use to notice; and in conclusion the Court rendered a finding and judgment in the plaintiff’s favor. A motion for a new trial was made in due time, which was denied, and then the defendants, Austin and wife, appealed.
The plaintiff united in the same complaint an action at law against the defendants Austin and wife, and a suit in equity against them and the defendant Compton. Eo objection to this course of proceeding was made by the defendants, and *606therefore we are not called upon to decide upon the question of its propriety. The legal title to the land in controversy appearing to be in Mrs. Austin, it was necessary for the plaintiff to appeal to the equitable jurisdiction of the Court to obtain a decree declaring the conveyances made by Austin to Compton, and by Compton to Mrs. Austin, fraudulent and void, in order to disincumber the case of the ostensible title of Mrs. Austin, which, if valid, was superior and paramount. And in order to show that the plaintiff had the right to attack the conveyances through and by which Mrs. Austin acquired the title to the land as fraudulent and void, it was indispensable for him to establish a relation on his part to the true title by means of the judgment against Austin and the sale and conveyance of the property under and by virtue of such judgment and his own acquisition of the title transferred under and by means of it. Therefore he set forth and alleged in his complaint in equity his title and the means by which Austin, the husband, became divested of it, and how the plaintiff became invested with it. The means set forth consisted of a judgment obtained by Barker against Austin in the Superior Court of the City of San Francisco, and an execution issued thereon under which the property was sold and conveyed to Ryckman, and the conveyance from Ryckman to the plaintiff. The existence of the judgment pleaded, the defendants Austin and wife severally attempted to controvert, but instead of doing so positively, they denied the existence of such a judgment on information and belief. If the issue thus sought to be made was effectual, then there is no doubt the Court erred in the admission of the evidence, depending upon the existence in fact of the judgment described in the complaint. Then the question to be decided in the first instance, is, whether the denial by the defendants upon information and belief, that Barker recovered the judgment against Austin, was effectual. If it was, then it put in issue the allegation of the complaint, which it was designed to controvert.
The forty-sixth section of the Practice Act provides, that, if the complaint be verified, the answer shall contain a specific *607denial of each allegation controverted by the defendant, or a denial thereof according to his information and belief. It has been a rule of the Courts to require an answer to a verified complaint to be positive in form, in order to put in issue a material allegation of the complaint, provided the defendant is presumed to possess a knowledge respecting the fact alleged ; but, if he is not able to answer positively, in such case he must by a proper statement of facts or circumstances overcome the presumption of knowledge on his part, which being done, his answer on information and belief will be deemed all that the law requires. (Brown v. Scott, 25 Cal. 194; Humphreys v. McCall, 9 Cal. 59.) The plaintiff’s position at the trial, which the Court sustained, necessarily proceeded upon the hypothesis that the defendants, Austin and wife, knew whether or not Barker recovered a judgment against Austin as alleged in the complaint, and that, possessing such knowledge, they were bound to state it in positive terms if they said anything about it. This position would seem to be of more force against the husband than as against the wife, because he was a party to the action in which the judgment was obtained, as alleged by the complaint, while she was not. But it does not follow, that because the allegation was that Barker obtained a judgment against Austin, the latter must be presumed to know whether such allegation was true or untrue, because a judgment in form, is sometimes obtained without any knowledge of the defendant respecting it. If the defendants did not know that such a judgment had been obtained, or the contrary, it was their duty to make the necessary inquiries, that they might be able to determine whether they could deny in any form the existence of the judgment described in the complaint, or whether they must admit it, either in terms or by implication, from their silence. The natural course to be pursued in such a case would be, either to call upon the custodian of the records of the Court, in which it was alleged the judgment was recovered, and inquire of him if there was such a judgment, or to employ some person more learned or competent than themselves to make the proper inquiries and *608investigations; and whether they might be informed by the one or the other of such persons of the truth of the matter, might make no particular difference. Assuming that they adopted the usual means for acquiring information on the subject, and that they became informed, such information was founded on statements or representations of the person or persons of whom they inquired. Still they were, for aught that appears, without knowledge whether such a judgment was recovered, but being informed that there was no such judgment and believing the information, they might, predicating .their respective answers upon such information and belief, deny that any such judgment was recovered.
It is difficult to define with more exact precision when an answer should be positive in its denials, than to say that when the material facts alleged in the complaint are presumptively within the knowledge of the defendant he must traverse them, if he undertakes to do so at all, directly and positively, or he must show how it is that he is without knowledge of such facts. In the case under consideration, we are of opinion the presumption did not arise, that the defendants knew that a judgment had been recovered by Barker against Austin, or the contrary, and, consequently, that they might deny the recovery of such a judgment upon information and belief.
We have said nothing, and do not intend that any inference shall be drawn from our silence, respecting the validity or invalidity of the judgment in form which was exhibited to the Court below on the motion for leave to amend the answers. It is not agreed by counsel for the respective parties that such judgment is properly before us for consideration, and the question of the jurisdiction of the Superior Court over the person of the defendant in that case has not been discussed by counsel in the submission of this case, and we deem it proper to dispose of the appeal upon the point considered, as such point is the only one now necessary to be decided.
Judgment reversed and a new trial ordered.
Mr. Justice Sanderson did not express any opinion.