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 to the transfers of wines in the wineries or wine cellars of the makers or owners thereof, or other persons having possession, care, and control of the same, and the pipes, casks, and tanks in which the said wines are contained, which transfers shall be made in writing, and certified and verified in the same form as provided for chattel mortgages and which shall be recorded in the book of miscellaneous records in the office of the county recorder of the county in which the same are situated; provided, also, that the sale, transfer, or assignment of a stock in trade (or of such a quantity of a stock in trade as to be substantially a whole) in bulk, or in any manner otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor, transferrer, or assignor, will be conclusively presumed to be fraudulent and void as against the existing creditors of the vendor, transferrer, or assignor, unless at least five days before the consummation of such sale, transfer, or assignment the vendor, transferrer, or assignor, or the intended vendee, transferee, or assignee shall record in the office of the county recorder in the county or counties in which the said stock in trade is situated, a notice of said intended sale, transfer, or assignment, stating the name and address of the intended vendor, transferrer, or assignor, and the name and address of the intended vendee, transferee, or assignee, and a general statement of the character of the property or merchandise intended to be sold, assigned, or transferred, and the date when, and the place where, the purchase price, if any there be, is to be paid; provided, nevertheless, that if such intended sale is to be at public auction the notice above required to be recorded shall state that fact, the time, terms, and place of said sale, the names and addresses of the vendor and auctioneer, and a general statement of the character of the property or merchandise intended to be sold; but such sale shall in no event occur within five days of the date of recordation of said notice; provided further, that the provisions of this section shall not apply or extend to any sale, transfer or assignment made under the direction or order of a court of competent jurisdiction, or by any executor, administrator, guardian, receiver, or other officer or person acting in the regular and proper discharge of official duty, or in the discharge of any trust imposed upon him by law, nor to any transfer or assignment made for the benefit of creditors generally, nor to any sale, transfer or assignment of any property exempt from execution. En. March 21, 1872. Am'd. 1895, 47; 1903, 111. 92, 79; 94, 187; 95, 265; 95, 267; 98, 459; 94, 525; Chattel mortgage.-Change of possession not necessary; it must be recorded: Ante, sec. 2959. Chattel mortgage, when void as to creditors and purchasers: Ante, sec. 2957. Bond by grantee on suit to set aside fraudulent convey- ance: § 3441. Creditor's right must be judicially ascertained. A creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation. En. March 21, 1872. Cal.Rep.Cit. 93, 286; 95, 532; 132, 613. § 3442. Question of fraud, how determined. In all cases arising under section twelve hundred and twenty-seven, or under the provisions of this title, except as otherwise provided in section thirty-four hundred and forty, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consid eration; provided, however, that any transfer or incumbrance of property made or given voluntarily, or without a valuable consideration, by a party while insolvent or in contemplation of insolvency, shall be fraudulent, and void as to existing creditors. En. March 21, 1872. Am'd. 1895, 154. Cal.Rep.Cit. 54, 629; 89, 289; 89, 293; 109, 671; 117, 146; 122, 658; 126, 638; 65, 344; 74, 543; 83, 371; 84, 508; 92, 622; 93, 286; 104, 223; 117, 148; 117, 150; 118, 434; 122, 117; 126, 639; 126, 652. TITLE III. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 3449. 3450. 3451. When debtor may execute assignment. Certain transfers not affected. 3452. What debts may be secured. 3453. 3454. § 3455. 3456. 3457. 3458. 3459. § 3460. § 3461. What preferences may be given. (Repealed.) Certain rights not affected by preferences in assignment. Joint and separate debts. Assignment, when void. (Repealed.) Assignment to be in writing. Compliance with provisions of last section necessary to Assignee takes, subject to rights of third parties. Affidavit of assignor to be filed with inventory. Recording assignment and filing inventory. Assignment of real property. 3462. 3463. 3464. Same. 3466. 3467. Bond of assignees. 3468. 3469. 3470. 3471. 3472. Conditions of disposal and conversion. Accounting of assignee. Property exempt. Commissions of assignee. Assignees protected for acts done in good faith. 3473. Assent of creditor necessary to modification of assignment. § 3449. When debtor may execute assignment. An insolvent debtor may in good faith execute an assignment of property in trust for the satisfaction of his creditors, in conformity to the provisions of this chapter; subject, however, to the provisions of this code relative to trusts and fraudulent transfers, and to the restrictions imposed by law upon assignments by special partnerships, by corporations, or by other specific classes or persons. Every such assignment shall contain a list of the names of the creditors of the assignor, and their places of residence and amounts of their respective demands, and the amounts and nature of any security therefor, and shall, subject to the other provisions of this section, be made to the sheriff of the county, or city and county, wherein the assignor resides, if the assignor resides within this state; or in case the assignor resides out of this state, then to the sheriff of the county, or city and county, wherein the property assigned, or some of it, is situated; but when the assignor resides out of the state, an assignment made as herein provided may, by its terms, transfer any property of the assignor in this state. The sheriff shall forthwith take possession of all the property so assigned to him, and keep the same till delivered by him, as hereinafter provided. When the assignment has been made, as herein provided, the sheriff shall immediately, by mail, notify the creditors named in the assignment, at their places of residence as given therein, to meet at his office on a day and hour to be appointed by him, of not less than eight, nor more than ten days from the date of the delivery of the assignment to him, for the purpose of electing one or more assignees, as they may determine, in the place and stead of the said sheriff in the premises, and shall also publish a notice of such meeting, and the purpose thereof, at least once before such meeting, in some newspaper published in his county, or city and county. The notice so to be mailed shall also contain a statement of the amount of the demand of the creditor, and the amount and nature of any security therefor, as set forth in the assignment; and if any creditor shall not find the amount of his claim to be correctly so stated, he may file with said sheriff, at or before such meeting, a statement, under oath, of his demand, and such statement shall, for the purpose of voting as hereinafter provided, be accepted by said sheriff as correct; and when no such statement is filed, the statement of amount as set forth in the assignment shall be accepted by the sheriff as correct. No creditor having a mortgage or pledge of real or personal property of the debtor, or lien thereon, for securing the payment of a debt owing to him from the debtor, shall be allowed to vote any part of his claim at such meeting of creditors, unless he shall have first conveyed, released, or delivered up his said security to said sheriff, for the benefit of all creditors of said assignor. At such meeting the sheriff shall preside, and a majority in amount of demands present or represented by proxy shall control all questions and decisions. The creditors may adjourn such meeting from time to time, and may vote on all questions either in person or by proxy signed and acknowledged before any officer authorized to take acknowledgments, and filed with the sheriff. At such a meeting, or any adjournment thereof, the creditors may elect one or more assignees from their own number, in the place and stead of the sheriff, and the person or persons so elected shall afterwards be the assignee or assignees under the provisions of this title; and the sheriff, by transfer in writing, acknowledged as required by section three thousand four hundred and fifty-eight, shall at once assign to such elected assignee or assignees, upon the trusts in this title provided, all the property so assigned to him, and deliver possession thereof. All recitals in such assignment by said sheriff of notices of such meeting, and the holding thereof, and of the due election of such assignee or assignees, shall be prima facie proof of the facts recited. The sheriff shall, before the delivery of such assignment, be paid the expenses incurred by him, and fees in such amount as would by law be collectible if the property assigned had been levied upon and safely kept under attachment. Thereupon, and after the record of such lastnamed assignment, as in this title provided, such elected assignee or assignees shall take, and hold, and dispose of all such property and its proceeds, upon the trusts and conditions and for the purposes in this title provided. En. March 21, 1872, Am'd. 1889, 80; 1895, 83. Cal. Rep.Cit. 63, 188; 78, 265; 83, 237; 87, 456; 94, 188; 98, 411; 104, 399; 108, 86; 108, 87; 112, 495; 113, 431; 124, 161; 124, 163; 128, 107. Partner cannot assign: See ante, sec. 2430, subd. 1. § 3450. Insolvency, what. A debtor is insolvent, within the meaning of this title, when he is unable to pay his debts from his own means as they become due. En. March 21, 1872. Cal.Rep.Cit. 74, 543; 78, 576; 84, 48; 117, 155. $ 3451. Certain transfers not affected. The provisions of this title do not prevent a person residing in another state or country from making there, in good faith, and Civ. Code-28 |