Watkins v. Wilhoit

Citations

• 4 Cal. Unrep. 450
• 35 P. 646

Syllabus

<p>Assignment for Creditors—Failure to Record.—Under Civil Code, section 3465, which declares an assignment for the benefit of creditors “void” as against nonassenting creditors, unless recorded as required by sections 3463, 3464, no preliminary suit is necessary by a nonassenting creditor to set aside an unrecorded assignment before he can maintain a creditors’ bill to apply the assignor’s property in the assignee’s hands on a judgment against the assignor.</p> <p>Assignment for Creditors.—The Fact That an Unrecorded Assignment may be valid as between the parties does not render it merely voidable as against nonassenting creditors, since Civil Code, section 3465, expressly declares it “void” as against them.</p> <p>Assignment for Creditors.—The Right to Bring a Creditors’ Bill to set aside an assignment for the benefit of creditors as in fraud of plaintiff’s rights accrues when the execution on plaintiff’s judgment against the assignor is returned unsatisfied, and not when the assignment was made1</p> <p>Recording Instrument—What Constitutes.—Civil Code, section 1170, which provides that an instrument is deemed to be recorded when deposited in the recorder’s office for record, must be read in connection with section 1213, which requires the instrument to be “recorded as prescribed by law” before subsequent purchasers are charged with constructive notice of its contents; and hence no notice is imparted until the instrument is actually placed on record in the proper book, and then it relates back to the date of deposit for record.</p> <p>Recording Instrument in Wrong Book.—The Negligence of the recorder in recording a conveyance in the wrong book cannot affect third persons, but the injury must fall on the parties to the conveyance, since they are the “parties aggrieved,” within the meaning of the county government act (section 133), making the recorder liable to the parties aggrieved in three times the amount of damages occasioned by his negligence.</p>