Wilhoit v. Lyons

Citations

• 98 Cal. 409
• 33 P. 325
• 1893 Cal. LEXIS 935

Syllabus

<p>Assignment for Benefit of Creditors—Validity of Unrecorded Assignment — Construction of Code.—Under section 3465 of the Civil Code, as it stood prior to the amendment of 1889, providing that “ an assignment for the benefit of creditors is void against creditors of the assignor and against purchasers and encumbrancers in good faith and for value,” unless it is properly recorded, an unrecorded deed of assignment is valid as against the assignor and all creditors assenting to it, and is void against non-consenting creditors only when they were such at the time it was executed, and not against those who might subsequently become such creditors.</p> <p>Id. —Discretion to Assignees—Construction of Assignment. —A deed of assignment for the benefit of creditors, which conveys to the'assignees all of the assignor’s property “for the benefit of all his creditors, without any preference or priority other than that provided by law,” and empowers them to “sell and dispose of” the real estate, “using a reasonable discretion as to the times and modes of selling and disposing of said estate, as it respects making sales for cash or on credit,” is to be construed as giving to the assignees only such discretion as they were authorized by law to exercise, and is not, therefore, in violation of subdivision 5 of section 3457 of the Civil Code, which renders such an assignment void if it confers upon the assignees power which, if exercised, might prevent or delay the immediate conversion of the property to the purposes of the trust.</p> <p>Id.—Action by Assignees against Execution Purchaser—Notice of Deed of Assignment—Presumttion.—In an action to quiet title to land by the assignees of an insolvent debtor against a subsequent execution purchaser, who claimed to be a purchaser of the land in good faith and for value, where the defendant failed to prove a want of notice of the deed of assignment, and the court found that ever since the date of their deed the plaintiffs had been in posse