Bryant v. Langford

22 P. 219, 80 Cal. 542, 1889 Cal. LEXIS 954

• Court: California Supreme Court
• Decided: September 17, 1889
• Docket: No. 12931
• Status: Published

Opinion

Works, J.

This is an action by the appellant to set aside a deed of assignment of certain real estate, made by him to the respondents for the benefit of his creditors.

The sole ground alleged" in the complaint for setting aside the deed is, that the assignees failed to give the bond required by section 3467 of' the Civil Code, the amount of such bond having been fixed by the judge of the superior court. The court below correctly sustained a demurrer to the complaint.

The failure to give the bond did not affect the validity of the deed. The execution and delivery of the deed vested the title to the property in the assignee. A failure on the part of the assignor to file an inventory, or a failure to record the deed, renders the assignment void as “ against creditors of the assignor, and against purchasers and encumbrancers in good faith and for value,” and until the inventory and affidavit have been filed, and the assignee has given the required bond, such assignee has no authority to dispose of the estate or convert it to the purposes of the trust. (Civ. Code, secs. 3461-3468.) But the title passes as between the assignor and assignee, and the assignment is irrevocable. (Forbes v. Scannell, 13 Cal. 288; Warner v. Jaffrey, 96 N. Y. 256; 48 Am. Rep. 616.)

If the assignor has any remedy, it is to have the assignees removed, and he certainly has this remedy, as he, as well as his creditors, is interested in the giving of the bond and the due performance of the trust by the assignees.

Judgment affirmed.

McFarland, J., Sharpstein, J., Beatty, C. J., and Thornton, J., concurred.