personal property until he brought the suit against the trustees of the Blair Oil Company, in March, 1917, and recovered the judgment on which the execution issued which led to the sale complained of here. Defendants also offered to show that Garn, trustee under the assignment, had never taken possession of the property, or exercised over it any acts of ownership, as required by section 3440 of the Civil Code; that Moore never had notice of the assignment to Garn, and never saw Garn, or any one representing him, in connection with the property until four years after the assignment; that Garn then stated to him that he was not responsible for Moore's wages, and did not know him in the transaction. Defendants' object in offering the foregoing testimony was to offset the showing of plaintiff as to the delivery of the personal property, transferred by the assignment, to the trustee, and for the further purpose of establishing under the provision of the same section of the Code, that Moore, plaintiff in the suit whence arose the execution sale, became a creditor of the Blair Oil Company (or its trustees settling its affairs), while it remained in full possession of the property. Sustaining the objections of the plaintiff to the offered testimony, the trial court held that the "only question for the consideration of the court was as to whether the property was put out of the hands of the corporation by the assignment." Defendants rested without further showing, whereupon the court made its finding that plaintiff was owner of the casing and gave him judgment against defendants for its value at the time of the conversion. Defendants claim that the court erred in its ruling and judgment, and on appeal base their contention on the grounds, first, that the assignment by the Blair Oil Company to Garn was not a valid assignment for the benefit of creditors; and, second, that if the assignment was valid at the time it was made, it was void as to Moore, who later became a creditor while the property still remained in the possession of the oil company and its trustees. They base their argument on their construction of section 3440 of the Civil Code, relating to fraudulent transfers, and section 3449 et seq., of the same Code, relating to assignments for the benefit of creditors. Section 3440 of the Civil Code, as it stood at the time of making the assignment, so far as pertinent to this discussion was as follows: "Every transfer of personal property is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or incumbrancers in good faith subsequent to the transfer; provided, however, * that the provisions of this section shall not apply or extend to any transfer or assignment made for the benefit of creditors generally." Sections 3449 to 3473 of the Civil Code provide the procedure by which an insolvent debtor may in good faith execute, to the sheriff of the county in which he resides, an assignment of property in trust for the satisfaction of his creditors. One of these sections, No. 3458, provides that the assignment and the transfer by the sheriff must be in writing and properly subscribed, acknowledged and recorded, in the mode prescribed by the chapter on recording transfers of real that unless the provisions of said section property. The next section, 3459, provides 3458 are complied with, an assignment for the benefit of creditors is void against every creditor not assenting thereto. [2] It cannot be seriously contended that the instrument here complies with the foregoing sections, 3449 to 3473. On the appeal, respondent admits it does not measure up to the requirements of a statutory assignment. An assignment which falls short of the requirements of these sections, however, is valid as against the assignor and all creditors assenting to it, and serves to vest the assignor's title to the property in the assignee. It is, at most, void only against creditors not assenting thereto and against purchasers and incumbrancers in good faith and for value. Wilhoit v. Lyons, 98 Cal. 409, 33 Pac. 325. [3, 4] It is likewise the law that à sale of personal property, though not followed by immediate delivery and actual and continued change of possession, as required by section 3440 of the Civil Code, is not a nullity, but is good against all the world except the creditors of the vendor, and is good against them also, except when attacked in legal proceedings for the collection of their debts, and that the vendee, being the owner, can convey title thereto and the purchaser from him will, in any event, acquire a title good against all the world, except the creditors of the original vendor, and against them, also, if he is a purchaser in good faith, for value and without notice. Paige v. O'Neal, 12 Cal. 483; Wilhoit v. Lyons supra; Williams v. Borgwardt, 119 Cal. 81, 51 Pac. 15. Such assignments pass the title to the assignee and the assignment becomes irrevocable. Bryant v. Langford, 80 Cal. 542, 22 Pac. 219. The Supreme Court of this state has said: "If the conveyance is to a trustee, and the debtor intends to divest himself, not only of the title to the property, but of all control over it; if it is intended as an absolute conveyance of all his property, and is made for the purpose of securing a distribution of its proceeds among his creditors, * in legal effect it is an assignment for the benefit of creditors. The material and essential characteristic of a * * BUENA VISTA OIL CO. v. PARK BANK OF LOS ANGELES. (Civ. 2860.) (District Court of Appeal, Second District, Division 2, California. Feb. 13, 1919. Rehearing Denied by Supreme Court April 14, 1919.) 1. APPEAL AND ERROR 1011(1)—Review of COURT'S FINDING-CONFLICTING EVIDENCE. The court's finding on conflicting evidence will not be reviewed. 2. APPEAL AND ERROR general assignment is the presence of a trust. We are of the opinion that the assignment from the Blair Oil Company to Garn was a valid assignment for the benefit of the company's creditors, and divested the company of all title in and to the real and personal property thereby transferred. [5] Appellant's remaining contention is that even if the assignment was valid at the time it was made it subsequently became void as to Moore, under section 3440 of the Civil Code, supra, by reason of the fact that he became a creditor of the corporation, or its trustees settling its affairs, after for feiture of its charter, while they remained in possession of the personal property, described in the assignment; that had the defendants been allowed to introduce the proffered evidence, it would have established those facts; that such facts being shown, it would follow as a conclusion of law that the property was rightly seized by Moore in the hands of Garn, the trustee, as though there had been no attempted transfer by the oil company. If the assignment had been executed to effect merely an ordinary transfer of personal property, this contention of appellant would be sound. Watson v. Rodgers, 53 Cal. 401; Rohrbough v. Johnson, 107 Cal. 149, 40 Pac. 37. But, as already pointed out, the assignment in question was one for the benefit of creditors generally. By its own terms, section 3440 of the Civil Code does "not apply or extent to any transfer or assignment for the benefit of creditors generally." The testimony sought to be introduced by defendants in the court below was therefore immaterial, and not in response to any issue within the pleadings in the case. The ruling of the court excluding the evidence was correct, and judgment followed accordingly. Said judgment is therefore affirmed. We concur: GAN, J. 1078(5)—ABANDON MENT OF SPECIFICATIONS OF ERROR. Where, notwithstanding many specifications insufficiency of evidence, defendant's opening brief complained of but one finding, the other specifications will be deemed abandoned. 3. BANKS AND BANKING 130(3)-DEPOSITING CHECK BY CORPORATE OFFICER-CREDIT TO INDIVIDUAL. A bank having no previous dealings with a officers or their powers was hot warranted in corporation and being unacquainted with its accepting a check payable to the order of such corporation bearing indorsement only of payee's name by its secretary and after collecting the check place the amount to the credit of the person presenting it, without inquiry as to his authority, and permitting him to withdraw the proceeds. 4. CORPORATIONS 414(4)-POWER OF SECINDORSING AND COLLECTING RETARY CHECKS. THOMAS, J. In this action plaintiff, as successor in interest of American Midway Oil RICHARDS, J.; KERRI- Company, seeks to recover of defendant the sum of $5,000. The faets upon which this such receipt, became the property of A. L. Kemper, secretary; that defendant made collection of said check for the account of said Kemper, and, as already hereinbefore set forth, placed said sum to the credit of such account. (2) That plaintiff is estopped from bringing its action. Subsequent to the trial and prior to judgment, and to comply with the proof and theory of the case, plaintiff, by leave of the court, filed the following amendment to the complaint: "The plaintiff, by leave of the court, first had and obtained, amends its complaint filed herein in the following respects: By striking out all of paragraph V of the first cause of action in said complaint contained, and inserting in lieu thereof the following: "That thereafter and on or about the 12th day of July, 1911, said check of $5,000.00 was removed from the office of the plaintiff, in the city of Los Angeles, by A. L. Kemper, secretly and without the knowledge, said A. L. Kemper, without the knowledge, conconsent or authority of plaintiff, and was by sent or authority of this plaintiff, indorsed as follows: "American Midway Oil Company, A. L. Kemper, Sec'y." That thereafter and on or about said 12th day of July, 1911, said Kemper secretly, and without the knowledge, consent or authority of this plaintiff, delivered said check to the defendant. That the defendant paid no money or other consideration for said check, or the proceeds represented thereby, and parted with nothing of value therefor. That subsequently and prior to the 1st day of August, 1911, there was paid to said defendant by the payee bank in said check named, to and for the use of the plaintiff the sum of $5,000.00, represented by said check.'" claim is based are substantially as follows: On or about July 11, 1911, one A. L. Kemper, the secretary of the American Midway Oil Company at Los Angeles, appropriated a check for $5,000, made and forwarded by the Esperanza Consolidated Oil Company at its office in San Francisco to said American Midway Oil Company-and which will be referred to hereinafter as plaintiff-at Los Angeles. Such check was drawn to the order of the plaintiff. It was sent by mail inclosed in an envelope addressed to plaintiff. A. L. Kemper, in the office of plaintiff, opened the letter, extracted the check, and by the use of a rubber stamp indorsed upon the back of such check the words: "American Midway Oil Company, Sec'y." In the space following the word "Company" Kemper wrote his own name, and thereunder indorsed the words, “A. L. Kemper, Secretary." He deposited the check, thus indorsed, with the defendant, and the said defendant entered same to Kemper's account, as by him instructed. On the 18th of July, 1911, Kemper withdrew $1,800, and on the 31st of the same month $300 more, of the proceeds of said $5,000 check collected by the defendant bank by check so drawn upon the defendant, and signed as aforesaid. This money was appropriated by Kemper to his own use. The balance of the $5,000 is still retained by defendant. The defendant contends that Kemper was secretary and general manager of said plaintiff from September, 1910, to September 30, 1911, and that the said sum of $2,100 so drawn by Kemper was due him as salary as such secretary and general manager. Plaintiff did not discover the loss of the $5,000 check until the latter part of August, 1911, whereupon demand was made upon defendant for the proceeds thereof. On October 3, 1911, two checks, one for $4,000 and one for $1,000, were drawn against said fund in defendant's bank by plaintiff, and, upon payment being refused, such checks were duly protested. Thereupon plaintiff brought this suit. Judgment went for plaintiff for $5,000, with in-flict in the evidence, and we will not disturb terest and costs, from which, and from an order denying its motion for a new trial, defendant appeals. The court found against the defendant upon the material issues. Defendant, by certain specifications, attacks many of said findings as being without "sufficient" evidence to support them. [1-3] From a careful perusal and consideration of the evidence before us, we are of the opinion that the record contains evidence tending to prove every issue. There was con the findings of the trial court upon such testimony. Porter v. Johnson, 172 Cal. 456, 156 Pac. 1022. Notwithstanding the many specifications for insufficiency of evidence, defendant's opening brief complains of but one finding. It therefore follows that the remaining specifications may be deemed The complaint declared specifically upon the contention aforesaid, and in four separate causes of action asserted claim for money had and received by and for money loaned to defendant for plaintiff's use. The abandoned. Shepherd v. Turner, 129 Cal. answer, and the several amendments thereto, after admitting the receipt of the proceeds of said check, in substance interposed the following defenses to plaintiff's said causes of action: (1) That the check in question was not deposited with defendant, nor were any moneys received thereon at the time said check was deposited the property of plaintiff; but that prior to the receipt of such check by defendant it had been indorsed in blank by plaintiff, and thereafter, and prior to 530, 62 Pac. 106; Duncan v. Ramish, 142 Cal. 686, 76 Pac. 661. The controversy, therefore, so far as we are concerned, centers upon the question: What was the duty of the defendant bank when the check was presented by Kemper? The question of agency is not here involved. It does not appear from the evidence that there was any delegation of authority, or any "holding out," or any transaction of like character with "any one," or any dealings of any kind with the defend ant, to the knowledge of plaintiff. As is so 21 Pac. 373; Asher v. Sutton, 31 Kan. 290, well said by respondents: 1 Pac. 535. In the absence of such authority, "The latter (defendant) had its selected de-a secretary cannot transfer his principal's positaries. Its by-laws devised, and its direc-property; his authority will not be pretors enforced, a plan for the safeguarding of its sumed, but on the contrary must be affirmaPalo Alto, etc., v. funds. The signatures of two of its officers were tively shown to exist. required to withdraw its funds from such de- Bank, supra; Read v. Buffum, 79 Cal. 77, positaries. Kemper was not one of such officers, 21 Pac. 555, 12 Am. St. Rep. 131; California, nor was the defendant one of such depositaries. etc., v. Sciaroni, 139 Cal. 277, 72 Pac. 990. It The petty cash account is without influence or would appear that any prudent and intellirelevancy in this controversy. Such account was originally kept in the name of L. T. Wells gent person would have been placed on notice, by the very presentation of the check in conindividually. It was continued by means of Wells' individual check to the date of the $5,000 troversy for deposit, as it possessed within transaction, in the name of A. L. Kemper, sec- itself, as we view it, elements of suspicion Being chargeable with retary. The account was a small one, not ex- and irregularity. ceeding $100 at any time. That checks were knowledge that the power of such secretary drawn against such petty cash account, first will not be presumed, but must be shown, it by Wells, and later by Kemper, to pay for was the duty of the bank, before dealing with stamps and other like office expenditures of such check, to establish the evidence of the plaintiff, is without significance. The account secretary's power. Defendant contends that so maintained was under the sole control of the individual in whose name it was opened. it would place a burden upon bank tellers Deposits to the credit thereof were properly "if they were compelled to exercise judicial made, because the checks in every case were functions and ascertain the ownership of drawn to the order of, and were indorsed by, funds represented by thousands of checks the person named in such account. Its name which were deposited under similar circumdid not appear thereon, nor did it have any in- stances, before placing the same to the credit terest therein, to the knowledge of defendant. of the last indorser. Further, how much The officers of the latter testified that they did patronage would a bank have if it were to not know, until after the $5,000 transaction, that plaintiff claimed any moneys in their in- challenge the honesty of the man making stitution. The proof leaves Kemper bare of all the deposit?" To our mind it is not a quespower to dispose of the funds of plaintiff. It tion of the bank's challenging the honesty of demonstrates that there was not the slightest any one, but the performance of a duty imbasis for defendant's claim of justification, be- pressed upon it by law. "Desire for 'patroncause of Kemper's agency. It forces defendant age,' while commendable, should not be ento the contention that, notwithstanding the couraged by the practice of unbusinesslike utter failure to produce any testimony tending and irregular transactions"-as respondent to support its claim, nevertheless the law im- so well puts it. From the evidence here it poses no penalty upon it. Accordingly, the question for determination may be restated as appears that defendant, without making any follows: May a bank, without previous deal- inquiry whatever-and Kemper was careful ings with a corporation, and unacquainted with not to offer any information-accepted the its officers or their powers, accept a check, by check for collection, forwarded it to the its terms payable to the order of such corpora- drawee bank for payment, received the tion, bearing the indorsement only of the payee's amount, and still, without making any effort name by its secretary, collect the amount of to comply with its duty of inquiry, and upon such check, place it to the credit of the person Kemper's instruction, placed the amount to presenting it, refrain from making any inquiries the credit of Kemper, as secretary, and thereas to the authority of such person, permit him to withdraw such proceeds, and escape liabil- after permitted him to make withdrawals ity to the payee, in the face of the uncontra- therefrom. The very name of the payee, and dicted evidence that such person as secretary the attempted indorsement, cast a "shadow" had no authority to act, and that the moneys upon the check, which could have been reso withdrawn were devoted to his personal moved by the performance by the bank of its plain duty under the law-that of inquiry. use?" Ward v. City Trust Co., 192 N. Y. 61, 84 N. E. 585; Levy v. Irvine, 134 Cal. 664, 66 Pac. The answer, of course, must be in the negative. The right of said Midway Oil Company to the check in question had not been assigned or transferred by any one authorized so to do. [4] Viewing this case in the light of all the evidence and surrounding circumstances, it is clear that Kemper had no authority, express or implied, to sign said check; nor did he have any authority by virtue of his office as secretary. Palo Alto, etc., Ass'n v. First National Bank, 33 Cal. App. 214, 164 Pac. 1124; Blood v. Marcuse, 38 Cal. 590, 99 Am. 953. [5] The language of the court in the case of Fresno Canal, etc., v. Rowell, 80 Cal. 114, 22 Pac. 53, 13 Am. St. Rep. 112, when it is said: "The defendant cannot be allowed to shut his eyes and say he did not see, when by opening them he might have seen" There can be no is very apropos here. merit in defendant's contention that it was justified in refusing compliance with plain 743(2)-CONCLUSIVENESS— VALIDITY OF CONVEYANCE. Judgment decreeing validity of husband's conveyance to wife is conclusive as to validity of conveyance upon wife's subsequent action to restrain sheriff from levying execution upon the land to satisfy a judgment against husband entered subsequent to the conveyance. 3. EXECUTION 171(1)—ACTION TO ENJOIN. Injunction may be issued to restrain sheriff from levying execution upon land to satisfy judgment recovered against grantor subsequent to his conveyance of the land. 4. QUIETING TITLE 7(4)-CLOUD UPON TITLE-SALE OF LAND UPON EXECUTION. because the said check had been generally per month from such date, the two judgments indorsed. As we have already seen, such were entirely distinct from each other, and latwas not the case. Because of the unauthor- ter judgment did not become a lien upon propized indorsement of the check by Kemper, erty conveyed by defendant prior to its entry, plaintiff's title to the proceeds of said check but subsequent to entry of first judgment. did not pass to defendant when the latter 2. JUDGMENTS collected the amount thereof from the drawer's bank; but, instead, it became liable to plaintiff for that much money had and received to and for the use of plaintiff. Palo Alto, etc., v. Bank, supra; Knoxville Water Co. v. Bank, 123 Tenn. 364, 131 S. W. 447; Ward v. City Trust Co., supra. As we view the evidence, and construe the law applicable to this case, there was not the slightest excuse for the act of the defendant bank in so accepting said check. As we have seen, there were no previous dealings because of which it might be misled. Kemper said nothing; no inquiry was made of him. Without any fault upon the part of plaintiff its property was taken and attempted to be disposed of by one having no authority so to do. Had the defendant bank performed its plain duty here, it would have been saved from its present predicament, and Kemper would have been thwarted in his unlawful scheme. The whole theory of defendant here, and the very foundation of its argument, is based upon the assumption that Kemper was, at the time the check was received, secretary and general manager of plaintiff. This was not the case. He was secretary, but he was not the general manager, and had not been for many months. He never did have authority to do what he attempted to do here, as the evidence in this case, not only abundantly, but conclusively, shows. Our question is therefore answered by the statement that the bank should have made inquiry. For the reasons above stated, and many others that occur to us not necessary to mention, we are of the opinion that the evidence amply supports the findings complained of by appellant here. No other point in the record before us merits attention. Judgment and order affirmed. MURPHY v. RIECKS, Sheriff, et al. (Civ. 1948.) The sale of lands upon an execution issued against the grantor of the person holding legal title will cast a cloud upon the title. 5. EXECUTION 171(4)—INJUNCTION OF SALE -CLOUD ON TITLE, Sale of land will be enjoined where its effect will be to cloud the title of the party complaining. 6. PARENT AND CHILD 3(1)—SUPPORT OF CHILD-DUTY OF PARENT. daughter who is unable to support herself, where Father has legal duty of supporting his he has ample means for doing so. Appeal from Superior Court, San Joaquin County; W. H. Langdon, Judge. Action by Alice K. Murphy against William H. Riecks, as Sheriff of the County of San Joaquin, State of California, and Lulu Migfendant named appeals. Affirmed. non Murphy. Judgment for plaintiff, and de Walter F. Lynch, of Stockton, for appel lant. ent. HART, J. The appeal is by defendant, J.; Lulu Mignon Murphy, from a judgment, entered in the superior court of the county of San Joaquin, restraining defendants from selling, by virtue of a certain writ of execution, at sheriff's sale or otherwise, certain real property of plaintiff. (District Court of Appeal, Third District, California. Feb. 18, 1919. Rehearing Denied by Supreme Court April 17, 1919.) 1. JUDGMENTS 773-LIEN - CONVEYANCE PRIOR TO ENTRY OF JUDGMENT. Where judgment directed defendant to pay plaintiff specified amount per month until specified date, and subsequent to such date another hearing was had, and a judgment entered directing defendant to pay plaintiff a specified sum The defendant Riecks, as sheriff, filed an answer and disclaimer, and upon the trial was permitted to withdraw from the case. The real parties to the action, therefore, are will hereinafter be referred to as the defendthe plaintiff and Lulu Mignon Murphy, who ant and appellant. Prior to the 13th day of October, 1908, S. S. Murphy was the owner of the property sought to be sold by virtue of said writ of execution. On said day, by deed of gift, he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |