Many of the assignments and specifications have not been prepared in accordance with the rules of this eourt. Repeatedly there has been failure to “quote the full substance of the evidence admitted or rejected” to enable one to make an intelligent ruling without having recourse to the transcript and even to the exhibits. While a federal court would be technically justified in disregarding such faulty assignments and specifications altogether, I have preferred to waive formal defects and considered all the specifications except one.
On the other hand, the appellee complains that the appellant’s specifications 12 to 17, inclusive, point out alleged errors made by the master that were not before the trial court, on exceptions appearing in the record. Examination of the transcript, however, will disclose that the subject-matter of the six specifications complained of, especially specification 17, was, in substance at least, covered by the defendant’s exceptions to the master’s report. All these exceptions were overruled by the lower eourt.'
I will therefore consider all the specifications of error except one (specification 17a).
The first two assignments deal with the power of a court of equity to render a money judgment, in view of the fact that most of the stocks held under the purported pledge were still in the defendant company’s possession, and could be returned in kind, if the eourt so ordered.
It is fundamental law that, when a eourt of equity once has jurisdiction, it may give legal relief. Equity Rule 23 (28 USCA § 723).
That the lower eourt had jurisdiction to determine this suit on the equity side is admitted by the appellant. I am not at this time passing on the question of the validity of the jurisdictional claims to equity relief, made in the bill of complaint. Sufficiency of the proof of these allegations — the necessity for the appointment of a master, for example —was not attacked by the defendant during the trial, and obviously cannot be considered on appeal, especially since such sufficiency is not the subject of an assignment of error.
The appellant urges, however, that the relief granted by the court is beyond the jurisdiction of the latter.
Considering the record, as I find it, devoid of seasonable objection as to jurisdictional facts, I cannot support this contention.
Section 70e of the National Bankruptcy Act (11 USCA § 110(e) provides: “The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless it was a bona fide holder for value prior to the date of the adjudication.”
In the present suit, the trustee prayed for an accounting, for the sale to be decreed fraudulent and .void, and for the value of the shares of stock on the date of the pledge sale, August 16, 1926, with interest at 7 per cent. The interlocutory decree appointed an “auditor or master to examine the parties under oath, touching all matters contained in this *155reference,” etc., and to ascertain “the highest aggregate value of the property and stocks” between August 16, 1926, and the date of the approval of the audit.
This was a decree within the jurisdiction of a court of equity, as was the order of confirmation made thereunder. The ascertainment of the values of! various stocks on a given day, especially in a ease where it is alleged that the corporations represented are hostile and where it is admitted by the defendant that “none of said shares * * * are quoted on any stock exchange,” is clearly a task that a master in an equity ease could perform better than could a jury in an action at law.
In Balfour et al. v. San Joaquin Valley Bank et al., 156 F. 500, 502, 503, the United States Circuit Court for the Northern District of California said: “To reach a conclusion on the merits, an account will have to be stated between the parties. It would manifestly he impossible for a jury, in the time allotted for the consideration of: a case, or at all, for that matter, to arrive at an accurate statement of the debts and credits and strike a balance. Its verdict would he guesswork. The authorities sustain the jurisdiction of equity in eases similar to the one presented by the bill of complaint. The decision in Hanks Dental Association v. International Tooth Crown Co., 194 U. S. 303, 24 S. Ct. 700, 48 L. Ed. 989, makes the necessity for retaining the case in equity all the more apparent.”
In Kinney-Coastal Oil Company et al. v. Kieffer et al., 277 U. S. 488, 507, 48 S. Ct. 580, 584, 72 L. Ed. 961, the Supreme Court said: “It is a general rule that a court of equity, in a suit of which it has and takes cognizance, may administer complete relief between the parties, even though this involves the determination of legal rights which otherwise would not be within the range of its authority. Camp v. Boyd, 229 U. S. 530, 552, 33 S. Ct. 785 (57 L. Ed. 1317); McGowan v. Parish, 237 U. S. 285, 296, 35 S. Ct. 543 (59 L. Ed. 955); United States v. Union Pacific Ry. Co., 160 U. S. 1, 50, et seq., 16 S. Ct. 190 (40 L. Ed. 319).”
See, also, Rice & Adams Corporation v. Lathrop, 278 U. S. 509, 515, 49 S. Ct. 220, 73 L. Ed. 480; People of Porto Rico v. Livingston (C. C. A.) 47 F.(2d) 712, 721.
This court has repeatedly recognized the power of a court of equity to render a money judgment in cases similar to the one at bar.
The language of Judge Hunt in Brainard v. Cohn (C. C. A.) 8 F.(2d) 13, 15, is applicable to the instant case: “It is true the trustee seeks a money judgment, but he also asks that certain transfers made by the bankrupt in carrying out a conspiracy to defraud creditors may be set aside, and for an accounting with respect to quantities of personal property taken by defendants, and which has been mixed and confused beyond possible identification with the property of defendants, and for an injunction pendente lito against threatened removal or disposition of certain property, part of which belongs to Cohn, but which has been confused with that taken, and for sneh further relief as he may be entitled to. Relief against such a situation calls for the exercise of the flexible jurisdiction of equity, to the end that the wrongdoers shall not profit by their wrongs and that innocent creditors shall not suffer by them.” See, also, In re Wright Motor Co. (C. C. A.) 299 F. 106, 108, in which Judge Hunt again delivered the opinion.
In the instant case, the trustee asked for an accounting and for the appointment of a master. Though the necessity for an accounting was denied in the defendant’s answer, the necessity for the appointment of a master to make an audit was at no time challenged during or after the trial, nor is it the subject of an assignment of error even at this late date.
In the Wright Case, supra, Judge Hunt affirmed a money judgment ([D. C.] 292 F. 197, 202) rendered in an equity suit.
Specification 3 deals with the asserted lack of evidence to sustain the decree of the court. In the briefs for the appellant, the lack of evidence complained of relates to the alleged fraud.
There is no need for an extended analysis of the evidence to sustain the lower court’s finding of fraud. The sequence of events from June 29, 1926, the purported date of the issuance of certificate No. 12, whereby Henry’s 2,499 shares were pledged to the appellant, and February 24,1927, when Henry filed his voluntary petition, clearly discloses a plan to “freeze out” nonkindred creditors from the family corporation’s stock and from other of Henry’s assets.
I will advert, however, to one significant bit of testimony by George A. Barceloux, president of the company, which appellant’s elaborate and ingenious briefs have failed to explain :
“Q. What happened between the 27th day of April, 1926 [the purported date of the pledge agreement], and the 29th day of June, 1926, the purported date of Certificate *156No. 12 by which the Company acquired Henry’s 2,499 shares as pledgee that actuated you to have it [the certificate] issued? A. Well, I had heard that you got a trust agreement for deed of trust recorded on that Lake County Ranch, and got suspicious that if you had that done you had induced Henry to break that escrow agreement I had and record that, or otherwise you could not have that deed of trust on record.”
Yet Exhibit 16 shows that the deed of trust was executed on June 39, 1926, and'was recorded on July 3, 1926; the latter date being four days later than that of the purported date of certificate No. 12. Hence, regardless of the date of the pledge agreement, which itself is alleged to have borne a feigned date, certificate No. 12 must have been antedated — so as to place it before June 30, 1926, the date on which Henry assigned to Freeman his 2,494 shares of the 2,499 that he had theretofore pledged to the company. This inference of antedating is inescapable if we accept George’s testimony as to why the certificate was issued.
Finally, there is probably no question that this series of transfers by Henry to his kindred and to his attorney left him, as he said, with no “property * * “■ of any kind.” There is ample justification, at any rate, for the conclusion that these transfers tended to hinder, delay, and defraud Henry’s nonkindred creditors, whose claims, including Freeman’s, are alleged to have aggregated more than $90,000.
But, since these transfers occurred prior to the commencement of the four-month period preceding the filing of the petition in bankruptcy, it is necessary, before they can be successfully attacked by the trustee, that they be shown to have been fraudulent under the state law. In Stellwagen v. Clum, 245 U. S. 605, 614, 38 S. Ct. 215, 218, 62 L. Ed. 507, the Supreme Court said:
“This section [70(e) of the Bankruptcy Act] as construed by this court gives the trustee in bankruptcy a right of action to recover property transferred in violation of state law. Security Warehousing Co. v. Hand, 206 U. S. 415, 425, 426, 27 S. Ct. 720, 51 L. Ed. 1117, 11 Ann. Cas. 789; Knapp v. Milwaukee Trust Co., 216 U. S. 545, 548, 557, 30 S. Ct. 412, 54 L. Ed. 610.
“And a right of action under this subdivision is not subject to the four months’ limitation of other sections (60b, 67e) of the Bankruptcy Act. Under this subdivision if a creditor could have avoided a transfer under a state law, a trustee may do the same.” See, also, Dodd v. Raines (D. C.) 1 F.(2d) 658, 659; and Gross v. Grossman (C. C. A.) 2 F.(2d) 458] 460.
The Civil Code of California provides:
Ҥ 3439. 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.
Ҥ 3440. Every transfer of personal property, other than a thing in action * * * 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 transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself. * * *
“§ 3442. In all eases arising under * * * the provisions of this'title, except as otherwise provided in section thirty-four hundred and forty, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration; provided, however, that any transfer or encumbrance of property made or given voluntarily, or without a valuable consideration, by a party while insolvent or in contemplation of insolvency, shall be fraudulent, and void as to existing creditors.”
In the language of the California statute, the question of fraud is one of fact and not of law. While some of the evidence was documentary, much of it consisted of testimony, such as that dealing with an old oral understanding between the bankrupt and his deceased father or with the question of whether a date was actually written in on the purported day, or similar matters.
In its opinion the lower court made it clear that it based its conclusions largely upon its estimate of such testimony: “Moreover, taking into account 'all the facts and circumstances in evidence, all that makes for credibility of witnesses and weight to be given to evidence, all the indefinable impressions of the trial, the conviction is compelled that *157the transfers involved were made with intent by all parties to hinder, delay and defeat Henry’s creditors.”
Such “indefinable impressions of the trial” are indeed the persuasive imponderables of an equity suit involving- fraud.
It may be well, furthermore, to point out at this juncture that, on July 3, 1926, the Barceloux Company held securities valued by the master at $94,949.66, as of August 16, 1926, to secure debts amounting to $29,564.-48, or more than three times the value of the three notes secured by the pledge.
Yet on that day Henry gave the company additional security valued by the master at $2,158, as of August 16, 1926. According to Henry’s testimony, this additional security was for “the debt I owed them and not having paid any interest to the corporation, hut I think there was some amount paid at some time or another as interest.”
Incidentally, the foregoing is a sample of the vagueness of much of the testimony given by members of the Barceloux family in connection with important matters.
This court has repeatedly held that, under such circumstances, it would not be inclined to disturb lightly the findings of the lower court. Jones v. Jones, 35 F.(2d) 943, 945; John T. Porter Co. et al. v. Java Cocoanut Oil Co., Ltd., 4 F.(2d) 476, 478, certiorari denied, 268 U. S. 697-698, 45 S. Ct. 515, 69 L. Ed. 1163; Ostbern v. Dean, 18 F.(2d) 1019, 1020; Monson v. Hibler, 24 F.(2d) 909, 910.
The ease of Porter v. Java Company, supra, presented facts in many respects similar to those at bar. There, too, the date of the execution of a pledge was in controversy, and interested parties testified as to that fact. In discussing this phase of the ease, Judge Rudkin said: “ * * * Without going into further detail, we think it is apparent, from what we said, that the question involved was purely one of fact for the consideration of the trial court, and that the findings of that court, based on conflicting testimony taken in open court, will not be disturbed on appeal. Boss v. United States (C. C. A.) 290 F. 167; Taylor v. Nevada Humboldt Tungsten Mines Co. (C. C. A.) 295 F. 112.”
In Mon son v. Hibler, supra, Judge Gilbert thus stated the rule: “The judgment of a District Court on the facts will not be disturbed on appeal unless it is clearly against the weight of the evidence, or unless plain and manifest error exists; and this is especially true where both the referee and the District Judge have coincided m their conclusions. [Cases cited.]”
Without further reviewing the evidence as to fraud, therefore, I can say that I see no reason for disturbing the findings of the lower court in the case at bar. I believe that there was ample evidence of fraud, both within the meaning of the California law and within the spirit of the National Bankruptcy Act.
Specifications 4 and 5 allege that the lower court had no jurisdiction to render a decree fixing the value of the stocks in excess of that set forth in the bill.
Examination of the bill does not bear out this objection. Paragraph IY alleges that the complainant “is informed and believes, and upon such information and belief alleges,” that the 2,499 shares of Barceloux . Company stock were “reasonably worth” $80,000. Paragraph Y uses similar language with reference to the shares comprising the second pledge. But paragraph X specifically avers that “plaintiff has no means of ascertaining the actual value of such shares other than by an inquiry as to the valuation of the assets and liabilities of the respective corporation [s] issuing the same, and without the aid of this Court, defendant Peter Barceloux Company, and the others of said corporations, will refuse to allow any such inquiry and valuation.”
Surely under such pleadings a court of equity will not hold the complainant to an estimate, avowedly a mere approximation, of its adversary’s own holdings — the very accuracy of which estimate, indeed, is sought to he tested, both in the allegations and in the prayer of the bill.
Furthermore, general relief is prayed for. The lower court, having jurisdiction, might grant any relief consistent with the pleadings and the evidence. Lockhart v. Leeds, 195 U. S. 427, 436-437, 25 S. Ct. 76, 49 L. Ed. 263.
Specification 6 adverts to the fact that the court awarded the complainant the highest value of the property or stocks involved, between the date of their transfer and the-date of the decree. The prayer in the bill was “for the value of all said shares of stock at the time of said sale, to-wit, August 16, 1926, less such sum, if any, as may be found to be due or owing- to George R. Freeman, as administrator of the Estate, of Frank Freeman, deceased, upon the security of said transfer and assignment at the time of said sale and still remaining due or owing, together with interest thereon at the rate of 7 per cent from said 16th day of August, *1581926.” As the appellee has pointed, out, however, the total of the sum prayed for, with interest, would exceed the stock’s highest aggregate value as found by the master. Therefore, as between these two methods of fixing the amount due by the defendant, the appellant would not be injured if the latter valuation were to be allowed to stand.
The item of interest is asked for under the authority of section 3336 of the Civil Code of California :
“The detriment caused by the wrongful conversion of personal property is presumed to be:
“First. The value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and
“Second. A fair compensation for the time and money properly expended in pursuit of the property.”
This court has decided that an appeal from a decree brings up for review only what was decided adversely to the appellant, and not whether the decree, so far as favorable to him, was erroneous.
In the ease of Santa Marina Co. v. Canadian Bank of Commerce (C. C. A.) 254 F. 391, 397, Judge Morrow cited numerous •cases in support of the proposition that “an appeal brings up for review only that which was decided adversely to the appellant.” Certiorari in this ease was denied by the Supreme Court, 250 U. S. 643, 39 S. Ct. 493, 63 L. Ed. 1186.
Specification 7 deals with the court’s power to render a decree for any value of the stock, in view of the fact that the latter remained in the possession of the defendant, and, inferentially, could be returned in kind. I have already disposed of this objection, by ■citing section 70e of the Bankruptcy Act, which gives the trustee the unrestricted election of whether he shall sue for the property or its value.
Specifications 8, 9, 11, 12, 13, 14, 15, 16, and 18 deal chiefly with the methods and the accuracy, of the master’s valuation of the property. In so far as these objections have not been disposed of in my foregoing holdings, they may be considered in a group.
It is conceded that the Barceloux Company is a family corporation, and that there is reserved to Lumina Barceloux, the aged mother of the bankrupt, “all of the rents, issues and profits and the income 'from the said real and personal property.” This right belongs to Mrs. Barceloux for the remainder of her life. In its opinion, the trial court stated that Mrs. Barceloux’s age was “undisclosed.” This is an error. The record clearly shows that she was 87 years old on March 7,1931..
The master valued this right of Mrs. Bar-eeloux’s as representing a liability of the corporation amounting to $7,828.77 on Au-' gust 16, 1926, and $3,186.77 on September 26, 1929. The master did not diselose how he arrived at this valuation, but his accuracy is only argumentatively questioned by the appellant, in its attack upon the accuracy of the valuation of the capital stock itself.
The appellant does, however, question the master’s authority to make “any such estimate” of Mrs. Bareeloux’s right at all. Nevertheless, it cannot be gainsaid that the duty to pay her any profits that might be made by the corporation was unquestionably a charge upon the estate of the corporation. Accordingly, in the absence of any affirmative evidence of error, I see no reason for disturbing the master’s valuation. See Lumina Barce-loux v. Buffum (C. C. A.) 51 F.(2d) 82.
The appellant contends that the family corporation has operated at a loss for three years, that lands are the principal assets of the company, and that the lands are producing no revenue. The appellee asserts that the company has no business, no good will, or none of the other factors that go to make up the value of the stocks of a corporation engaged in a business.
For practical purposes, these views are not very far apart, so far as they lead to the determination of the proper method of valuing the stock. As the appellee points out, the elements that the appellant contends should have' been considered in fixing the value of the stock would not have decreased it,-and therefore again the appellant is not harmed. The authorities cited in the appellant’s opening brief are not in point.
The value of the land was not lessened merely because it was owned by a company instead of by an individual. Even if we accept the appellant’s own gloomy view of the ■ corporation’s condition, the minimum of the corporate worth is still the difference between its resources and its debts.
As was said by Mr. Justice Field in the case of the Bank of Commerce v. Tennessee, 104 U. S. 493, 495, 26 L. Ed. 810, “The capital stock of a corporation may in a general *159sense be said to be all the property [of the corporation] in which the capital is invested.”
Unless otherwise provided by the charter or by-laws, the profits and surplus funds of a corporation, whenever they have accrued, are, until separated from the capital by the declaring of a dividend, a part of the stock itself. Bailey v. New York Central & Hudson River Railroad Co., 89 U. S. (22 Wall.) 604, 637, 22 L. Ed. 840.
As wo have seen, the defendant company, in its answer, admitted that none of the stock alleged to have been pledged was quoted on any stock exchange. This is tantamount to admitting that they had no known market value. When the evidence discloses no market value for stock, it is proper to establish its actual value by proof of the assets and liabilities of the company. American Surety Company of New York v. Duvall, 22 Ariz. 261, 196 P. 457, 460, and cases there cited.
The master’s valuation of the assets of the corporation was based largely upon conflicting testimony, and, especially since they were accepted by the District Judge, should not be lightly set aside by this court. In re Sternberg (D. C.) 300 F. 881, 885; In re Utica Pipe Foundry Co. (D. C.) 221 F. 787, 788, 790; Smith et al. v. Carlisle (C. C. A. 5) 228 F. 666, 668; Medsker and Wife v. Bonebrake, Assignee, 108 U. S. 86, 72-73, 2 S. Ct. 351, 27 L. Ed. 654;, Tilghman v. Proctor, 125 U. S. 136, 149-150, 8 S. Ct. 894, 31 L. Ed. 664; Roberts v. Southern Surety Co. (C. C. A. 4) 33 F.(2d) 501, 502, 503; Coats v. Barton (C. C. A. 8) 25 F.(2d) 813, 815; Munn v. Des Moines National Bank (C. C. A. 8) 18 F.(2d) 269, 271; Smith v. Hovland (C. C. A. 9) 11 F.(2d) 9, 13, certiorari denied, 271 U. S. 686, 46 S. Ct. 638, 70 L. Ed. 1151; Commercial National Bank v. Stockyards Loan Company (C. C. A. 8) 16 F.(2d) 911, 913, and numerous eases there cited, certiorari denied, 275 U. S. 547, 48 S. Ct. 84, 72 L. Ed. 438; In re Foley (C. C. A. 9) 6 F.(2d) 126, 127; Carstens v. McLean (C. C. A. 9) 7 F.(2d) 322, 323; Wingert v. President, etc., of Hagerstown Bank et al. (C. C. A. 4) 41 F.(2d) 660, 661, 663.
Accordingly, I find no reversible error in the master’s valuation of the assets and the liabilities of the Barceloux Company, from which valuation the master arrived at his figures for the shares of stock in controversy herein.
Specification 10 relates to the relegation of the defendant company’s claims to those of all other creditors. This part of the decree cannot be sustained, however, for such postponement has been, as we have seen, specifically waived by the appellee.
Specification 17 attacks the admissibility of several pieces of testimony offered before the master by the complainant-appellee and ruled upon by the court:
(a) The opinion of the witness Graves as to the market value of property. Here we have a flagrant instance of the insufficiency of some of the appellant’s assignments and specifications of error. This one sets forth neither the property referred to nor the witness’ answer. Reference to the transcript does not enable me to supply this deficiency, and accordingly we cannot consider this subdivision of specification 17.
(b) This relates to a change in “market value.” Here, again, the specification fails to designate what property is referred to, but an examination of the testimony of Graves leads us to believe that the “home ranch” is probably meant. As we have seen, admission of such testimony would not be prejudicial, in view of the fact that the value of the stocks on August 16, 1926, with interest at 7 per cent., would exceed the highest aggregate value.
(e) This objection deals with the qualifications of the witness Eibe and the manner of framing the questions to him. In view of the facts that the witness, as county assessor, seemed well qualified to testify as to land values, and that the master is allowed considerable latitude in taking evidence, I find no reversible error in the admission of this testimony. Blease v. Garlington, 92 U. S. 1, 7-8, 23 L. Ed. 521; Kansas Loan & Trust Co. v. Electric Ry., etc., Co. (C. C.) 108 F. 702, 704; In re Automatic Musical Co. (D. C.) 204 F. 334, 335-336, and cases there cited; Chadeloid Chemical Company v. Chicago Wood Finishing Co. (C. C.) 173 F. 797; Tucker v. Peiler (C. C. A.) 297 F. 570, 574.
(d) This objection relates to the master’s admission of testimony as to a sale to prove the value of bank stock. In view of the master’s latitude, and, further, because the value of this stock was relevant to the larger question of the value of Barceloux Company stock, this specification does not point out reversible error.
The remaining assignments, 19 to 24, inclusive, are directed against the admission by the lower court, over the appellant’s objections, of evidence, both oral and documentary. I have considered each of these assignments and specifications, carefully and separately, and am of the opinion that whatever errors, if any, which the' lower court may have made-*160in admitting such evidence, were not prejudicial.
It would seem to serve no useful purpose to discuss these specifications in detail, in this dissent, especially in view of the fact that it already is of undue length. Such length is justifiable, if at all, on the ground that the transactions were of so intricate and complicated a character and involved charges of fraud as well as valuations and accounting relating to property alleged to be worth more than $100,000.
The earlier retention of the pledged securities — if they were indeed pledged — on the part of Henry Barceloux, and the series of transfers to relatives, by which hé methodically advanced himself nearer and nearer to the shoals of bankruptcy, are susceptible of but one interpretation: the family, including Henry himself, was carrying out an elaborate plan to hinder, delay, and defraud his non-kindred creditors.
Accordingly, I believe that we should affirm that part of the judgment of the lower court which awards the plaintiff-appellee $106,409i44, together with $173.15 in costs and master’s fees. We should reverse that part of the judgment that relates to the postponement of the company’s claims until all other claims have been, paid, and hold that the Barceloux Company is entitled to participate in the distribution of the bankrupt’s assets on a basis equal to that of other creditors of its class. We should also reverse that portion of the judgment sustaining the plaintiff-appellee’s objections and exceptions to the master’s audit and report, in so far as it revises the master’s valuations of the stocks .of the Glenn County Bank and the Bank of Or-land. The master’s valuations of these stocks should be sustained.