son of the culpable negligence of the maker or grantor. But it was held on the peculiar facts of each case-proved by the testimony of disinterested witnesses-that there was no culpable negligence. In the Michigan case the maker of the note, after signing it, but before it was stamped, went out of the room to get a surety to sign with him, leaving the note lying on a table, and his sister present, at the same time directing the payee not to touch it while he was gone. Before he returned, the payee took the note, and went away with it, in defiance of the command of the maker and the protest of his sister. It was held not culpable negligence to fail to anticipate this criminal act of the payee. In the Wisconsin case, the deed, not fully executed, was placed in a locked trunk, of which the grantor's wife kept the key. While so kept it was stolen by the grantee, (the grantor's son,) and completed by a forgery. The court, in its opinion, distinctly says that if the deed had been completely executed by the grantor the loss must have fallen on him, on account of his negligence in leaving it where the grantee could gain access to it, but holds that he was not bound to anticipate the theft of an instrument to which apparent validity could only be imparted "by the crime of forgery." It seems scarcely necessary to point out the broad distinction between those cases and one in which the grantor shows by his own testimony that his grantee took the deed into his possession, and kept it long enough to impose upon an innocent mortgagee by his tacit, if not his express, consent. All the authorities are clear to the effect that, if Adams had asked and obtained express permission of the appellant to take the deed away, the estoppel would have been complete; and if an express consent will raise the estoppel I cannot see why a tacit consent does not work the same result. If my deed is lying on a table before me, and my grantee tells me by word and act that he is going to take it away with him, if I make no effort to prevent him, if I utter no word of protest, I consent as truly as if I did so by express words. This is precisely what the appellant did. He knew, apparently, that he was running a risk, he did not like it, but he permitted it, -and, having enabled his grantee to perpetrate a fraud, he is allowed to saddle its consequences upon an innocent party. More than this, he is allowed to subject an innocent party to a serious hardship, in order that he may reap an advantage from his own wrong. The case shows that the same $1,000 advanced by the respondent on her mortgage was paid over to the appellant as the second installment of the purchase price of the land, and this by the decree of the court he is allowed to keep, together with the first payment, and his land. In other words, he comes out of the transaction with the land that he sold, with the

$500 paid at the date of the sale, and with the $1,000 of which the respondent has been defrauded by his assistance. If Adams had not been enabled to perpetrate this fraud by the opportunity the appellant gave him, it is to be presumed he never would have made a second payment on his purchase, and the most the appellant could have got would have been the first payment and the land. By contributing to entrap the respondent he adds to his gains the precise sum, and the identical money which the respondent was induced to advance. He is not content to be restored to the position he would have occupied if the fraud had not been committed, but must make all the profit of it. There is, in my opinion, no rule of equity or law that lends itself to such a conclusion.

(Supreme Court of California. June 3, 1893.) ASSIGNMENT FOR BENEFIT OF CREDITORS-RECORDING-POWERS OF ASSIGNEE.

1. Civil Code, § 3459, which declares that, unless an assignment for the benefit of creditors shall be properly recorded, it shall be void against every creditor of the assignor not assenting thereto, applies only to creditors of the assignor at the time the assignment is made.

2. Where land in possession of the assignee in an assignment for benefit of creditors, which has not been recorded as required by law, is sold under a judgment against the assignor, the purchaser will be presumed, in an action against him by the assignee to quiet title to the land, to have purchased with notice of the assignment, where he does not aver in his answer, or offer any evidence, that he did not have such notice.

3. Failure of the assignee in an assignment for the benefit of creditors to give a bond as required by Civil Code, § 3467, does not affect the validity of the assignment, or authorize an action by the assignor, or one claiming under him, to set it aside.

4. An assignment for the benefit of creditors, which provides that the assignee shall sell the property assigned, "using a reasonable discretion as to the times and modes of selling and disposing of said estate as it respects making sales for cash or on credit. at public auction or by private contract or sale," is not void under Civil Code, § 3457, subd. 5, which provides that an assignment for the benefit of creditors shall be void if it confers on the assignee any power which, if exercised, might prevent or delay the immediate conversion of the assigned property to the purposes of the trust, as the discretion given in the assignment will be treated to mean such discretion as the assignee is authorized by law to exercise.

Commissioners' decision. Department 2. Appeal from superior court, San Joaquin county; Ansel Smith, Judge.

Action by R. E. Wilhoit and others, assignees of M. E. Bryant, an insolvent debtor, against A. I. Lyons, to quiet title to lands. Judgment was rendered for plaintiffs, and from the judgment and an order denying a motion for a new trial, defendant appeals. Affirmed.

John E. Budd, James H. Budd, and J. B. Hall, for appellant. Baldwin & Campbell, for respondents.

BELCHER, C. The plaintiffs brought this action to quiet their title to certain real property in San Joaquin county, and they claimed title to the property under a deed of assignment made to them by M. E. Bryant, an insolvent debtor, for the benefit of his creditors, on February 16, 1886. The defendant denied the plaintiffs' ownership or right to the possession of the property, and set up title to it in himself under and by virtue of a sheriff's deed conveying the property to him under date of September 15, 1890. The court below gave judgment for the plaintiffs, from which, and from an order denying his motion for a new trial, defendant appeals.

The facts of the case, as shown by the findings and evidence, are as follows: On January 30, 1886, M. E. Bryant was the owner of the property in dispute, but was insolvent, and unable to pay his debts. On that day, under the provisions of the Civil Code relating to "assignments for the benefit of creditors," he signed, acknowledged, and delivered to the plaintiffs, for the benefit of his creditors, a deed of assignment of all his property not exempt from execution. The grantees accepted the trust, and filed the deed for record in the recorder's office of the county; and on the same day the judge of the superior court of the county fixed the amount of the bond to be given by such assignees, as required by section 3467 of the Civil Code, at the sum of $25,000. On February 16, 1886, a mistake was discovered in the deed of January 30th, in this: that in the habendum clause thereof the name of R. E. Wilhoit, one of the grantees, had been omitted, and the name of H. S. Sargent inserted in its place. The mistake was made by the draughtsman of the deed, and was not discovered by any one until the day named. Thereupon the said deed was taken from the recorder's office, and the name of Sargent was erased from the habendum clause, and the name of Wilhoit was written in place thereof, and its date was changed to February 16, 1886. Bryant then again duly acknowledged the deed, and delivered it to the grantees, and they again accepted the trust and filed it for record; and, as shown by the certificate of the county recorder, it was recorded "in Book G, vol. 6, page 540, of Miscellaneous San Joaquin County Records." The judge of the superior court also made a new order on February 16th, requiring the assignees to execute a bond, conditioned as required by section 3467 of the Civil Code, in the sum of $25,000. Under the order first made fixing the amount of the bond to be given, a bond was drawn and signed by the principals and five sureties. It referred to the assignment of January 30th, and the order

of that date, and proper certificates were attached to it, showing that four of the sureties justified thereon on February 12th, and one on February 17th. The bond was approved by the judge of the court who made the orders on February 18, 1886. On August 2, 1888, the defendant recovered a judgment against Bryant for the sum of $3,728.29, and on February 12, 1890, an execution was issued on this judgment, and placed in the hands of the sheriff of San Joaquin county for service. The sheriff levied the execution on the real property in dispute, and under it sold the property to the defendant in part satisfaction of his judgment on March 8, 1890. No redemption from the sale was had, and on September 15, 1890, the sheriff executed to the defendant a deed of the property, which was duly acknowledged and recorded on the same day.

1. Appellant contends that the deed of assignment was never recorded in the proper book, and hence that it was void as against him. The law authorizes an insolvent debtor to make an assignment for the benefit of his creditors, and the provisions relating to such assignments are found in sections 3449-3473, Civil Code. Some of these sections were amended in 1889. The following, as they stood before the amendments, need only be referred to: "Sec. 3458. An assignment for the benefit of creditors must be in writing, subscribed by the assignor or by his agent thereto, authorized by writing. It must be acknowledged or proved and certified in the mode prescribed by the chapter on recording transfers of real property, and recorded as required by sections 3463 and 3464," etc. "Sec. 3459. Unless the provisions of the last section are complied with, an assignment for the benefit of creditors is void as against every creditor of the assignor not assenting thereto." "Sec. 3463. An assignment for the benefit of creditors must be recorded, and the inventory required by section 3461 filed with the county recorder of the county in which the assignor resided at the date of the assignment," etc. "Sec. 3465. An assignment for the benefit of creditors is void against creditors of the assignor and against purchasers and incumbrancers in good faith and for value, unless it is recorded," etc. "Sec. 3466. Where an assignment for the benefit of creditors embraces real property, it is subject to the provisions of article 4 of the chapter on recording transfers, as well as to those of this title." "Sec. 3473. An assignment for the benefit of creditors. which has been executed and recorded so as to transfer the property to the assignee, cannot afterwards be canceled or modified by the parties thereto without the consent of every creditor affected thereby." It is argued that section 4235 of the Political Code provides how and in what books the different kinds of papers are to be recorded by county recorders, and that, when the deed in question was recorded in a volume of

"miscellaneous" records, it was not in compliance with the requirements of that sec tion, and did not constitute a recordation under the sections of the Civil Code above cited. Conceding, without deciding, this to be so, still the deed was undoubtedly valid as against the assignor and all creditors assenting to it, and it served to vest the assignor's title to the property in the assignees. Bryant v. Langford, 80 Cal. 543, 22 Pac. Rep. 219; Wilhoit v. Cunningham, 87 Cal. 453, 25 Pac. Rep. 675. It was at most void only against creditors not assenting thereto, and against purchasers and incumbrancers in good faith and for value.

a

The question, then, is, does the appellant come within either of these classes? He obtained his judgment on August 2, 1888,-nearly two years and a half after the deed was executed, and the record entirely fails to show by averment or proof that he had any claim whatever against Bryant on February 16, 1886. But the statute evidently makes a deed of assignment void against nonconsenting creditors only when they were such at the time it was executed, and not against those who might subsequently become such. In Kane v. Desmond, 63 Cal. 464, there was a verbal gift of a piano by a husband to his wife. The piano was subsequently seized by the sheriff under an execution issued against the husband, and the wife brought an action to recover its possession or value. This court said the "transfer by gift was valid and effectual between herself and her husband and all the world, excepting existing creditors and bona fide subsequent purchasers without notice. There was no proof that Day-the execution creditor-was creditor of the husband at the time of the gift, and there is no presumption that the gift was void as to him as a subsequent creditor." And see Hussey v. Castle, 41 Cal. 239. This being so, the contention of appellant that the deed was void as to him because he was a creditor cannot be sustained. The only remaining question, then, under this head is, was appellant a purchaser in good faith and for value? There can be no pretense that he was such purchaser if he had notice, actual or constructive, of the prior deed at the time of his purchase, and the rule is well settled that the burden was cast upon him to show that he had not such notice. Long v. Dollarhide, 24 Cal. 218. In Eversdon v. Mayhew, 65 Cal. 167, 3 Pac. Rep. 641, it is said: "To entitle a party to protection as such a purchaser he must aver and prove the possession of his grantor, the purchase of the premises, the payment of the purchase money in good faith and without notice, actual or constructive, prior to and down to the time of its payment; for if he had notice, actual or constructive, at any moment of time before the payment of the money, he is not a bona fide purchaser;" citing numerous cases. Here there was no averment in the answer of defendant

that he did not have notice of the deed of assignment to plaintiffs, nor was any proof offered by him tending to show a want of such notice; and the court found that ever since the date of their deed "plaintiffs have been, and now are, in possession of all the real estate and premises in the complaint mentioned, and each and every part there of." It must be presumed, therefore, that appellant had notice of the deed to respondents at the time of his purchase, and hence that he was not a purchaser in good faith.

2. Appellant also contends that the assignment was void, because no bond was given by the assignees as required by section 3467, Civil Code. A bond was given and approved, as above stated, but it is objected that it was insufficient, because it referred to, and purported to be made in pursuance of, the deed of January 30th. Bryant v. Langford, 80 Cal. 542, 22 Pac. Rep. 219, was an action to set aside this same deed of as signment upon the ground that the assignees had failed to give the bond required by seotion 3467 of the Civil Code. It was held that the failure of the assignees to give the bond required did not affect the validity of the deed, or authorize an action by the assignor to set it aside. But appellant, by his purchase at the sheriff's sale, acquired the rights and interests of Bryant in the property, and can have no better standing before the court than Bryant had. If, therefore, Bryant could not have the deed set aside upon the ground stated, it must be clear that appellant cannot.

3. Appellant further contends that the deed of assignment was void as against him because it conferred upon the grantees the power to sell the property therein de scribed on credit. This contention is rested upon the provisions of section 3457, subd. 5, of the Civil Code, which reads as follows: "An assignment for the benefit of creditors is void against any creditor of the assignor not assenting thereto, in the following cases:

(5) If it confer upon the assignee any power which, if exercised, might prevent or delay the immediate conversion of the assigned property to the purposes of the trust." The language objected to as making the whole deed void is found in the habendum clause, and is as follows: "To have and to hold the said real estate, * in trust and confidence, however, to sell and dispose of the said real estate, * using a reasonable discretion as to the times and modes of selling and disposing of said estate, as it respects making sales for cash or on credit, at public auction or by private contract or sale." It is argued that the giving to the assignees a reasonable discretion as to making sales of the property for cash or on credit was in violation of the section of the Code above quoted, because, if exercised, it might delay the immediate conversion of the property to the purposes of the trust. There are two sufficient answers to this conten

tion. In the first place, as before stated, it does not appear that appellant was a creditor when the deed was executed, and, if not, he cannot be heard to complain of it. And, in the second place, the deed conveyed to the grantees all of the grantor's property "for the benefit of all his creditors, without any preference or priority other than that provided by law." The "reasonable discretion" conferred upon the grantees as to selling the property must therefore be treated as a lawful discretion, or, in other words, such discretion as they were authorized by law to exercise.

4. It is objected that there has been unusual and unwarranted delay on the part of the trustees in the execution of their trust. The delay has certainly been unusual, but it is probably accounted for by the large number of suits which have been instituted to determine the rights of different claimants to the property. The records show that six of the cases besides this have been brought to this court on appeal. The judgment and order appealed from should be a:firmed.

We concur: TEMPLE, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(3 Cal. Unrep. 893)

(No. 14,794.)

DESCALSO v. DUANE. (Supreme Court of California. June 3, 1893.) NEW TRIAL-DISMISSAL.

1. An order both denying and dismissing a motion for new trial, though somewhat inconsistent, must be considered as a dismissal, and proper, where, through inexcusable neglect of the moving party, the motion has not been brought into condition for hearing.

2. The fact that such a motion can be brought to hearing, under Code Civil Proc. § 660, either by the moving or opposite party, after notice or affidavits, etc., does not prevent the opposite party applying for dismissal, where, through inexcusable neglect, the motion has not been brought into condition for hearing.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; John F. Finn, Judge.

Action by P. C. Descalso against John Duane. Order denying and dismissing motion for new trial. Defendant appeals. Affirmed. Moses G. Cobb, for appellant. Stanly, Stoney & Hayes, for respondent.

TEMPLE, C. This appeal is from an order somewhat inconsistent in its terms, denying and dismissing a motion for a new trial. To deny a motion is to entertain and act upon it, and at the same time to end it, when, of course, it cannot be dismissed. A dismissal is a refusal to entertain it. The two forms were adopted because the decisions of this court have caused some doubt

as to what is the proper remedy in case the moving party fails to prosecute his motion with reasonable diligence. In Quivey v. Gambert, 32 Cal. 305, it was held that an order dismissing a motion for a new trial, or striking out the statement, was not appealable, because, though after final judgment in point of time, they did not follow it in legal sequence, or in the same line of procedure, and did not depend upon it. The court therefore recommended that the trial court let the motion proceed to the final hearing, and then deny it for failure to prosecute with reasonable diligence. In Calderwood v. Peyser, 42 Cal. 110, this rule is criticised, and the rule declared to be that any special order made after final judgment is appealable, the only test being the point of time. But the court still held that it was error to dismiss the motion for a failure to prosecute, but that the proper practice was to deny the motion. The legitimate penalty for failure to prosecute an action or proceeding would seem to be a dismissal, and if it be allowed to be regularly submitted for decision it is difficult to see why it should not be decided on its merits. This practice has sometimes been insisted upon since Calderwood v. Peyser, as in McDonald v. Conkey, 57 Cal. 325, and sometimes it has not been, as in Chase v. Evoy, 58 Cal. 348, in which it was said it makes no difference. In the present case the motion was not in a condition to be submitted, and the order must be considered as a dismissal. I think the practice was proper.

Appellant contends that such a motion cannot now be dismissed for failure to prosecute, because either party may bring the motion on to be heard. Section 660, Code Civil Proc. This section provides that the motion shall be heard at the earliest practicable period after notice of the motion, when made on the minutes of the court, or after the affidavits, bill of exceptions, or statement, as the case may be, are filed, and may be brought to a hearing by either party. But before either party can bring it on to be heard it must be in a condition in which it can be submitted; and if it is not, simply be cause of the inexcusable neglect of the moving party, the opposite party may apply for a dismissal. Here, after the statement had been agreed upon, the moving party was ordered by the court to have it engrossed. More than five months elapsed before the respondent made his motion for a dismissal, during which nothing was done. The statement was a short one, and could have been engrossed in two or three days. At the time no showing was made, explaining or excusing the delay, except that a few orders were procured, extending defendant's time to engross the statement. It does not appear why these were required, or what right the court had to make them, but they do not cover the last two or three months of the period. I do not think we can say that the order dismissing the motion was an abuse of discretion.

Having reached this conclusion, it is not necessary to determine whether the papers used on the hearing were properly identified. There can be no doubt, however, that a bill of exceptions is a safe mode. Herrlich v. McDonald, 80 Cal. 472, 22 Pac. Rep. 299. It is required by rule 29 of this court. I think the order must be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the order is affirmed.

(98 Cal. 442) McCALLION et al. v. HIBERNIA SAV. & LOAN SOC. et al. (No. 14,970.) (Supreme Court of California. June 5, 1893.) STAY BOND-JUDGMENT AGAINST SUREeties.

In an action to determine who is entitled to receive certain money which is paid into court, a judgment for plaintiff is not one "directing the payment of money within the meaning of Code Civil Proc. § 942, requiring a stay bond on appeal therefrom; and where a bond in addition to the ordinary appeal bond is given, to stay such judgment, it is void, and no judgment can be entered thereon against the sureties.

Department 1. Appeal from superior court, city and county of San Francisco; J. P. Hoge, Judge.

Action by J. J. McCallion and others against the Hibernia Savings & Loan Society and others. From a judgment against the sureties on a stay bond, defendants appeal. Reversed.

M. C. Hassett and Jas. F. Tevlin, for appellants. D. L. Smoot, for respondents.

GAROUTTE, J. Division No. 1 of a society known as the Ancient Order of Hibernians had several thousand dollars deposited in the Hibernia Savings & Loan Society. Dissensions arose in the organization, and an action was brought against the Hibernia Savings & Loan Society by certain individuals, claiming to compose the only true and genuine division No. 1, to recover this money. Certain other parties, making the same claims, intervened, and asked that the money be awarded to them. The loan society paid the money into court, and the interveners were substituted as parties defendant. The city and county treasurer became the custodian of the fund, under an order of the court, during the pendency of the action. Judgment was rendered that plaintiffs were entitled to the money; that the city and county treasurer pay the same over to them, and that the defendants pay the costs of the action, amounting to $312. Defendants appealed, and gave a stay bond in the sum of $7,500, being double the amount of the judgment and costs. Upon appeal the judgment was affirmed. 12 Pac. Rep. 114. Subsequently, upon a return of the remittitur to

the trial court, plaintiffs moved for judg ment against the sureties upon the stay bond, as provided in section 942 of the Code of Civil Procedure, and judgment was thereupon rendered against them in the sum of about $600. 23 Pac. Rep. 798. This appeal is prosecuted from that judgment.

The case disclosed by the record is not such a one as requires a bond to stay execution, and that fact is fatal to a recovery upon the bond, and demands a reversal of the judgment. It was said in Powers v. Crane, 67 Cal. 66, 7 Pac. Rep. 135: "On behalf of the sureties, who are the real parties in interest here, it is claimed that the undertaking, except in so far as the $300 is concerned, about which no question arises, was without consideration, and void. The pretended consideration therefor was a stay of execution of the decree appealed from, and, if the law itself operated a stay upon the giving of a $300 bond, it would seem that the point is well taken. That the statute did so operate was held by this court in the case of Snow v. Holmes, 64 Cal. 232, 30 Pac. Rep. 806. As the statute itself wrought the stay, there was no consideration for the sureties' promise. The benefit which the plaintiff in the case of Johnson v. Powers secured from the appeal came from the statute, and not from the promise of the sureties." See, also, Powers v. Chabot, 93 Cal. 266, 28 Pac. Rep. 1070. It is only upon a statutory bond that judgment can be ordered against the sureties on motion, and if the judgment from which appellants take this appeal is not such as calls for the giving of a bond to stay execution, aside from the ordinary $300 appeal bond, the filing of a bond for that purpose is unnecessary and useless labor, and, if so filed, is void as a statutory bond. Section 949, Code Civil Proc., provides that the ordinary appeal bond of $300 stays execution in all cases except those mentioned in sections 942, 943, 944, and 945. We then proceed to an examination of this judgment in the light of those sections, to determine where it shall be properly placed. Section 942 relates to appeals from judgments or orders directing the payment of money, and it is under the provisions of this section that respondent bases his claims for an affirmance of the judgment in this case. It was held in Estate of Schedel, 69 Cal. 242, 10 Pac. Rep. 334, that section 942 applied only to appellants who were required to perform the directions of the judgment or order appealed from, and this construction of the section has since been approved in Born v. Horstmann, 80 Cal. 453, 22 Pac. Rep. 169, 338, and Pennie v. Superior Court, 89 Cal. 32, 26 Pac. Rep. 617. In the present case the fund over which this litigation arose was not in the possession of appellants, either at the time the judgment was rendered, or when the appeal was taken, and never had been in their possession; and, that being the fact, they were not required