60 P. 675 | Cal. | 1900
Prior to December 17, 1896, the defendant, Menke, executed a note and mortgage to the assignor of *105 plaintiff upon the wines, machinery, tanks and other personal property of a winery owned by said Menke, in Santa Clara county, and plaintiff was on said day the owner of the said note and mortgage. The defendant, Menke, being on the said day indebted to respondents, Tuck and Johns, for grapes which they had sold to him, executed and delivered to them his note secured by a second mortgage upon the same property. This mortgage was duly acknowledge, was made in good faith, and with no intent to hinder, delay, or defraud any creditor or creditors, but it was not verified by any of the parties thereto as required by the code. After the said notes had been executed and the said mortgages recorded, and on the eighteenth day of January, 1897, the said Menke voluntarily executed to the sheriff of said county an assignment of all his property in trust for the satisfaction of the claims of his creditors under the provisions of the Civil Code.
On the twenty-eighth day of January, 1897, at a meeting of the creditors of said Menke, the appellant, Romer, was elected assignee and duly qualified as such. After the appellant qualified as such assignee, he received a conveyance from said sheriff of the property so assigned to him by said Menke. In the assignment so made to the sheriff the names of the creditors of said Menke were set forth and it was stated that the claims of plaintiff and of respondents were secured by chattel mortgages. On March 6, 1897, the plaintiff commenced this action to foreclose its mortgage, making the appellant, Romer, and the respondents Tuck and Johns defendants. After trial the court filed findings, and judgment was entered directing the said mortgaged property to be sold, and that from the proceeds of the sale the claim of plaintiff be first paid, and then the amount found to be due respondents upon said notes so secured by second mortgage. The defendant Romer has appealed from the judgment. No question is raised as to that part of the decree in favor of plaintiff, and the only point to be here determined is as to whether or not the said mortgage so executed to respondents is void as to appellant. Section
The mortgage of respondents was valid as between the parties, and as to all others except "creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value," and is not attacked by any subsequent purchaser nor encumbrancer, nor by any creditor as such. Does the appellant as assignee have the right to avoid the mortgage as the representative of the creditors? There is no authority given in our statute by which the assignee takes any greater rights in and to the property assigned than the assignor had at the time of the assignment. On the contrary, it is provided by section 3460 of the Civil Code: "As assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than his assignor had in respect to things in action transferred by the assignment."
This section seems to adopt the common-law rule, and under that rule the assignee could not assert any claim to the property which could not have been asserted by the assignor. It is stated in Burrill on Assignments, sixth edition, section 75: "Under the common law of assignments the assignee stands in the place of the assignor and can assert no claim to property which the assignor might not. The assignment, therefore, does not convey with it to the trustee the title to the property, which the assignor has previously transferred, in fraud of his creditors, for the purpose of hindering, delaying, and defrauding them."
The question is fully considered and the authorities reviewed by this court in Bank in the late case of Francisco v. Aguirre,
It is claimed that the decision in the case cited was made under section
If the transfer in this case should be held void as to appellant it would have to be upon the ground that the estate of Menke has devolved upon him in trust for the benefit of creditors. The estate of Menke was granted to appellant and did not "devolve upon him." An estate "devolves" upon another when by operation of law, and without any voluntary act of the previous owner, it passes from one person to another. (Francisco v.Aguirre, supra.) Our attention is called to the cases of Merrillv. Hurlburt,
"The failure to observe the well-defined distinction between the powers of the assignee in insolvency who thus represents the creditors, and those of an assignee for the benefit of creditors who is the representative of the assignor, has led to much conflict of authority upon this question. In this state it is held that an assignee for the benefit of creditors may not maintain such an action, but the distinction between such an assignee and the assignee in insolvency is clearly pointed out."
The above case was not decided at the time this appeal was taken. If it had been we must presume that the case never would have been brought here.
The judgment should be affirmed. *109
Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed. Henshaw, J., Temple, J., McFarland, J.