The record-union., 1891-01-16
Filled January 6, 1871

Appeal from Superior Court, San Joaquin
County.
For appellants, ]. C. Campbell.
For respondents, Carter & Smith.
IN BANK.
r. E. WILHoIT EFT AL, As-)
signees, Appellants,
THos. CUNNINGHAM EFT AL,
Respondents.
This is an appeal by the plaintiffs from a
final Judgment, entered against them upon
defendants demurrer to their complaint,
praying that defendants be enjoined from sell
ing the realty in controversy under certain
writs of execution.
1t appears by the complaint that Ella Aver
Ill, on the 9th day of October, 1885, COM
menced two separate actions in the
against NJ. Z. Bryant, to recover of
him the amounts due upon two
promissory notes, and on the same day caused
writ of attachment to issue in each action
and be levied upon certain real estate then be-
longing to Bryant; that thereafter on the 31st
day of the same month Bryant was by and in
the same court adJudged an lnsolvent debtor
against whom the said creditor. Averill, on the
29th day of the same month, proved her sew
eral claims, including the two promissory
30th day of January, 1856, by the consent of
defendant, Averill, as such creditor and all
the other creditors, the insolvency proceed
ings Were by an order of the court duly dis
missed; that on the 10th day of February
1855, Bryant being still insolvent, at the re-
quest of defendant, Averiil. and his other cred
itors executed and delivered to plaintiffs n
deed of assignment of all his property not
exempt from execution. for the benefit of his
creditors, pursuant to Division 4, Part 9, Title
3, of the Civil Code, which deed embraced the
real estate levied upon by the writs of attach
ment above mentioned; that the plaintiffs as
such assignees, accepted the trust and in due
time qualified as required by law, and entered
upon, and still continue, in the dis
charge OF the duties of the said trust;
that the said deed and proper inventory We're
duly filed for record; that defendant, Averill.
assented TO the execution and delivery of the
n ION ~ ainit n ADlu
TO the acceptance by plaintiffs of the trust thus
created; that since the said trust was created
the plaintiffs have been the owners and in the
possession of the real estate in controversy, in
trust for the benefit of all of the creditors of
Bryant including the defendant, Averill; that
prior to the execution of said deed the leyies
under the writs of attachment above mem
toned We're dissolved; that on the 21st day of
September, 1887, in the Superior Court afore-
said, the defendant, Averill, obtained q judg-
ment in her favor in each of the
suits upon the promissory notes. and
caused a writ of execution. regular in FORM to
issue IN each case, and to be placed in the
hands of her co-defendant, Cunningham, as
Sheriff of San Joaquin county, for service:
that the said Sheriff has by virtue of said writs
of execution levied upon and threatens to-
and unless restrained by Injunction will sell
the real estate in question, and thereby cast a
cloud upon the plaintiffs title thereto, which
viii prevent them from executing their trust
eXpeditiously and with advantage to the
creditors OF Bryant; that the said execution
levies were made for the express purpose of
hindering the plaintiffs from executing their
trust
The grounds of demurrer are: First-Insuf-
ficiency OF the facts stated to constitute cause
ofaction; second, ambiguity and uncertainty
of the facts in certain specified particulars:
third, incapacity of the plaintiffs to sue be-
cause 1t does not appear that the inventory
was verified as required by Section 1862 of
the Civil Code.
/. In support of the first ground of de
lnurrer, the respondents contend that the as
signor still retains an equitable interest in the
land in controversy, which was included in
the deed of assignment, and that il is subject
TO sale upon execution. But this argument
does not apply to the facts. The allegation
folio 4 y is, that the defendant, Cunningham,
as Sheriff. has levied upon and threatens to
sell, not the asSignor's equitable interest in
the residuum of the property assigned. but the
whole of the property itself, thereby including
the assignees legal title thereto. MS well as the
equitable interest of the assignors in the
residuufn, If there should be any.
The deed ofassignment is controlled by the
provisions of the Civil Code relative to trusts.
Civil Code Section 3449.) Those provisions so
Tar as applicable here, are as follows:
section S63. Except as hereinafter other
wise provided, every express trust in real