The record-union., 1891-01-16

contained in the last section, the author of a
trust may, in its creation, prescribe to whom
the real property to which the trust relates
shall belong in the event of the failure or ter
mination OF the trust, and may transfer or de-
yise such property, subject to the execution OF
The trust created by the deed of assignment
here, relates to real property, and was ex-
pressly created for the benefit of the creditors
OF the assignor. There was no reservation in
1t OF any estate or interest to the assignor ex-
cept that authorized by Section S64, supra,
wherein the assignor folio 20) provides that
the reSiduum left after his creditors are salts
fled shall be returned to him, his executors,
administrators or assigns. No other estate or
interest could be reserved in a trust of this
character. tSub-division 4, Section 3457 of
the Civil Code.) The effect of the deed then
was to dlvest the aSsignor of his entire interest
and estate in the property assigned, subject to
the right to a reconveyance of any residue re-
manning undisposed Of after the creditors are
satisfied, or payment of the surplus of the
proceeds of the sales of the property.
ms Is in accordance with the weight OF
authority in other Jurisdictions, as shown in
Burrill on Assignments, 9TH Ed, Sec. 29S.
Under our law as declared in the Civil Code,
an insolvent may, in good faith, make AN as
signment for the benefit of his creditors, with
or without the consent of the latter and when
such an assignment is made the creditors
must either avail themselves of the assets
without preference Section "a or not nj all.
The object of the law is to enable q debtor,
through his assignee, to dispose of his prop
erty for the benefit of his creditors. This OBJ
II
could ignore the assignment and sell the prop
erty to satisfy his particular claim. Snch a
a sale would, if it could be made, deprive
ne Would dssgnefs ne Of Still the the Rropery dses Or would
cloud the title of the assgnees, be-
cause in any action they might have to prose
cute for the removal of the cloud so cast, the
evidence of the purchasers title would show
that such latter title was derived from the as
slgnor, to overcome which The assignees
would have to prove that the judgments We're
CON 1r1nn hn
deed of assignment was made upon debts COW
cred and provided for by the deed of assign
ment. lPixley VS.. Higgins, 5 Cal. 1877 Por-
ter VS.. Pico, 50 Cal. 165; Roth VS.. Insley, "a
Pac. Rep. S53) Such a cloud would prevent
them from disposing' OF the property to the
advantage of the creditors in the performance
OF their trust.
The respondents further contend that the
threatened sales if made, would not,cast Il
cloud upon the assenecs' title to the property,
lnasinuch as the judgments, upon which the
executions were issued, were obtained subse-
quent to the assignment, and thereforeall that
could pass under the sales would be the equi-
table interest of the assignor in the residuum
of the property assigned.
But the facts here show that the actions in
which she obtained her several judgments
were begun upon subsisting credits before the
assignment was made, and that as such a
creditor she asSented to the assignment t.
Therefore she is one of the creditors for whose
benefit the assignment was made, and as such
must take her prOportionate share with
the other creditors. Besides, as already
shown, the execution levies were not restricted
to the equitable interest of the assignor in the
residHum, but were made upon the whole prop
erty.
1t is further claimed by the appellants that
as the complaint shows that defendant Averill
acquired a lien by attachment III each of the
actions in which she obtained her judgments,
above mentioned. before the assignment was
made, and as it does not appear that those
attachments We're dissolved, the liens SO ac-
quired became merged in the Judgments and
in consequence she is entitled to sell the realty
in question to satisfy such judgments. But it
distinctly alleged that those attachments were
dissolved. but the date is not stated. If how
ever, the absence of the date renders it insuffi-
cient, it appears from the allegations respect
ing the Insolvency proceedings which pre-
ceded the assignment, that are pleaded as
matters of inducement, that the attachments
were levied within one month prior to Bryant
filing his petition in insolvency. Since this is
SO, the attachments became dissolved by oper-
alton of law. (Insolvent Act of 1880, Section
17.) And that which is implied by law need
not be pleaded. tkraner VS.. Halsey, So Cal.
2S9).
2. The second ground of demurrer is in the
conjunctive-that is. that the complaint is am
biguous and uncertain. These are made sepa-
rate grounds of demurrer by Subdivision z of
Section 1870 of the Code of Civil Procedure
And in the case of Kramer vs. Halsey, supra, it
was held that where such separate grounds of
demurrer are conjoined, the complaint must
be defective on each or the demurrer must be
overruled. There the complaint was held to be
neither ambiguous nor unintelligible, but un-
murrer upon the ground of ambiguity, unin-
telligibility and uncertainty not sustainable.
In this case we do not think the complaint
is ambiguous. There is but one respect in
which il may be said to be So and that is
wherein ii is stated that the defendant Averill,
as q creditor, proved her claim in the insol-
vency proceedings several days before Bryant
was adjudged an insolvent. But as those pro-
ceedings were dismissed, this allegation is i'm
material. The complaint is uncertain with re-
gard to dates, as in Kramer VS.. Halsey, as well
other rHSneftS
both ambiguous and uncertain, it comes with
in the rule of that case.
3. AS to the capacity of the plaintiffs to
maintain this action as assignees. it is urged
that as ii does not appear from the complaint
that the affidavit required by Section 3i62 of
the Civil Code was attached to and filed with
the inventory, the assignment in consequence
was void, and the plaintiffs are therefore with
out legal capacity to sue.
In the case OF District No 10 VS.. Feck go
Cal. 405) this court said: .s1he defendants
demurred to the complaint. The first ground
of demurrer is that the complaint does not
state facts sufficient to constitute a cause of
action. The objections specified are, in sub
stance, that it does not appear from the COM
plaint that the plaintiff was ever duly created
swamp and overfowed land district. That
objection, however, if well taken, would go to
the legal capacity of the plaintiff to Sue, and
not to the sufficiency of the facts stated to
constitute cause of action. The Ph9nix
Bank VS.. Donnell, 40 New York. 41Oo A
demurrer on the ground that plaintiff has not
the legal capacity to sue, would be bad, be-
cause II does not appear upon the face of the
is not good ground OF demurrer that
it does not appear in the complaint
that the plaintiff has the legal capacity to sue.
That omission can only be taken advantage OF
by answer. &C. G. p. Sec. 433: The Phoenix
Bank VS.. Donnell. Supra. See also Miller VS..
Luco, so Cal. 257.
Ia the present case it appears by sufficient
allegations, the defect not having been specially
pointed ont under the first ground of de-
murrer, that Bryant made a valid assignment
for the benefit of his creditors, and that the
plaintiffs, as assignees hereunder, accepted
the trust, and duly qualified as such assignees.
1t therefore appears affirmatively that the
plaintiffs have the legal capacity to sue And
if it be q fact that the affidavit, which seems
to be essential to the validity of the assign
ment Civil Code Sections 3461, 3462, 3463,
721l, was omitted, then under the rule ap-
pliedin District No. II O VS. Feck supra such
omission must be set up in the answer because
it does not affirmatiyely appear upon the face
OF the complaint that SUCH affidavit was
omitted.
We therefore advise that the Judgment be
reversed, with instructions to the trial court
to overrule the demurrer to the complaint
and grant defendants leave to answer within
the usual time. GIBSON c.
We concur:
NANCLIEF, c.
BELCHER, c. C..
THE COURT.
For the reasons given in tie foregoing
opinion, the Judgment is reversed. with in
sIructlotls 70 liit trlii court 10 ONcfrule the de
murrer to the complaint, and grant defend
ants leave to answer within the usual time.
TILED January 5, 1871
Appeal from Superior Court, San Joaquin
County. Name of Judge not appearing.)
For appellant, ]. c. Campbell.
For respondents, Carter K Smith.
IN BANK.
II. S. SARGENT EFT AL, Assignees,
Appellants,
vs.. No. 13. .496.
THOMAS CUNNISGHAM EFT AL,
Respondents.
This case is in all material respects like that
of Wilhoit ct AL Assignees VS.. Cunningham ct
al, No. 49, 1875, this day decided, and for the
reasons given in that case, we advise that the