Wilhoit v. Cunningham

Citations

• 87 Cal. 453
• 25 P. 675
• 1891 Cal. LEXIS 1003

Syllabus

<p>Assignment for Benefit of Creditors •— Trusts. — A deed of assignment for the benefit of creditors is controlled by the provisions of the Civil Code relative to trusts, and operates to divest the assignor of his entire interest and estate in the property' assigned, and to vest the same in the assignees, subject to the rights of the assignor to a reconveyance of any residue remaining undisposed of after the creditors are satisfied, or to payment of the surplus proceeds of sales of the property.</p> <p>Id. ■—Rights of Insolvent and Creditors. —An insolvent may in good faith make an assignment for the benefit of creditors with or withoiv their consent, and the creditors must either avail themselves of the assets without preference, or not at alL</p> <p>Id.—Execution Sale of Assigned Property — Cloud on Title — Injunction. — A creditor whose claims were subsisting credits upon which action had been' commenced at the time of the assignment, and who assented thereto, cannot sell any of the assigned property on execution, and such sale may be enjoined as casting a cloud upon the title of the assignees, though the judgments were obtained subsequent to the assignment.</p> <p>Id. — Attachment — Dissolution — Insolvency — Dismissal. — An attachment levied within one month prior to the filing of a petition in insolvency by the debtor is dissolved by operation of law, and will not justify a sale under execution after dismissal of the insolvency proceedings, and after a subsequent assignment by the insolvent for the benefit of Ms creditors.</p> <p>Pleading — Implication of Law. — That which is implied by law need not be pleaded.</p> <p>Id.—Demurrer — Ambiguity and Uncertainty-—Conjunctive Statement of Grounds. —Ambiguity and uncertainty are separate grounds of demurrer, and where such separate grounds are conjoined, the pleading must be defective on each ground, or the demurrer must be overruled.</p> <p>Id. — Want of Capacity to Sue. —A demurrer for want of capacity of the pla