DEPARTMENT No. 1. [Filed April 20, 1883.] No. 7694. HINKLE, RESPONDENT, v. HIS CREDITORS, APPELLANTS. INSOLVENCY-ASSIGNEE CREDITOR-FRAUD-OPPOSITION. Under the insolvent law of 1852 (Stats. 1852, p. 69,) it was competent for the regularly-elected assignee, though a schedule creditor, to file a demurrer and opposition to the insolvent's discharge, on the ground of fraud, etc., and until the issue was disposed of, it was erroneous to discharge such insolvent. Appeal from Superior Court, San Francisco. Wilson and Otis for appellants. T. V. O'Brien for respondent. MCKEE, J., delivered the opinion of the Court: This is a proceeding by Hinkle, the respondent, to be adjudged an insolvent debtor, and discharged from his debts. The proceeding was commenced under the provisions of the Statute of Insolvency, passed March 4, 1852. In the schedule filed by the petitioner, Moody, the appellant herein, was named as a creditor, to whom the insolvent owed a balance of $4,000 upon a promissory note. At a meeting of the creditors of the insolvent, on the day fixed by the Court for the appointment of an assignee, pursuant to notice given for that purpose, Moody was elected assignee. As such he qualified and entered upon the duties of his office. But as a creditor of the estate he also demurred to the petition of the insolvent, and at the same time filed a written opposition to his discharge, upon the grounds that he had committed fraud in willfully and knowingly omitting from the schedule of his property several parcels of real estate, of which he was really the owner, but for which, before filing his petition in insolvency, he had executed and delivered to his father sham deeds, with intent to defraud his creditors. The Court overruled the demurrer, and on motion of the attorney for the insolvent, struck from the files the written opposition accusing the insolvent of fraud. The statute under which the proceeding was had provided. for the filing of such an opposition, by a schedule creditor of the insolvent, and prescribed the duty of the Court with reference to it. Section 20 provided as follows: "That in case after the appointment of said assignees, any one or more of the creditors. of the insolvent debtor should deem it necessary to oppose it, on the ground of some fraud having been committed by the said insolvent debtor, or of the appointment not having been legally made, he shall within ten days next following the ap pointment of said assignees, lay before the Court which has already taken cognizance of the case, his written opposition, stating specially the several facts of nullity of the said appointment, or of fraud by him alleged against the insolvent debtor, whereupon, in case of accusation of fraud, after having received the said insolvent debtor's answer, the Court shall order a jury to be summoned of not less than six men, to be summoned in the same manner as juries are summoned in the District Court, for the purpose of deciding on the said action." Filed, as the oppositon was, within the time prescribed by that section, and by the appellant as a creditor, who had proved and filed his claim according to law, the opposition was a part of the proceeding authorized by the insolvent law; and, upon being filed, it raised an issue, which involved a question of fraud, which it was the duty of the insolvent to meet, and of the Court to hear and determine. This issue the insolvent had the right to meet, either by demurrer or answer to the opposition containing the allegations of fraud. (Wilson v. His Creditors, 32 Cal. 407.) On failure or refusal to demur or answer, the Court, as in ordinary cases, could order a dismissal of the proceeding for failure to prosecute. (Sanborn v. His Creditors, 37 id. 699.) On filing an answer the duty was imposed on the Court to try and determine the issue as prescribed by Sections 20, 21 and 22 of the insolvent law; but until the issue was disposed of on demurrer or answer, it was erroneous to discharge the insolvent. The fact that the opposition was filed by a creditor who had been elected assignee, did not prejudice his right to make it-did not affect its validity nor oust the jurisdiction of the Court to hear and decide the issue raised by it. As assignee, he was entitled to all the property of the insolvent, from and after the surrender, even if it was not mentioned in the schedule (Poehlmann v. Kennedy, 48 Cal. 201), and when obtained, he would hold it in trust for the benefit of all the creditors and of the insolvent himself, subject to the proceeding in which he was acting as assignee. By that relation to the estate he did not waive nor lose any of his rights as a creditor. In his capacity as creditor he had the right to attack the proceeding in insolvency as a fraud upon the creditors. The insolvent statute of 1852 was not intended for the benefit of fraudulent insolvent debtors. (Stat. 1852, Secs. 27, 28, 29.) Striking the opposition from the files was, therefore, erroneous. (Davenport v. His Creditors, 10 Pac. L. J. 416.) Judgment and order reversed, and cause remanded for further proceedings. We concur: Ross, J., McKinstry, J. DEPARTMENT No. 2. [Filed March 28, 1883.] HUTCHINSON, APPELLANT, v. AINSWORTH ET AL., RESPONDENTS. MARRIED WOMAN-MORTGAGE-CERTIFICATE-NOTARY. The certificate of acknowledgment was defective in that it did not state that the notary, upon the examination without the hearing of her husband, made the married woman acquainted with the contents of the instrument. Section 1186 of the Civil Code requires that such separate examination must embrace as well the making her acquainted with the contents of the instrument as the acknowledgment by her; and Section 1191 gives the form of the certificate in very plain language. ID.-ID. When the acknowledgment is properly made but defectively certified, a party interested may have an action to correct the certificate. (Sec. 1202 C. C.) There is no objection to the joining this action with the action for foreclosure. ID.-ID. The Court should have permitted plaintiff to amend her complaint and prove, if she could, that the acknowledgment was actually taken in compliance with the statute, and have judgment correcting the certificate. Appeal from Superior Court, Alameda County. Reade and Belcher for appellant. Tyler & Tyler for respondents. The certificate of acknowledgment was defective in that it did not state that the notary, upon an examination without the hearing of her husband, made the married woman acquainted with the contents of the instrument. Section 1186 Č. C. requires that such separate examination must embrace as well the making her acquainted with the contents of the instrument as the acknowledgment by her; and Section 1191 gives the form of the certificate in very plain language. The Court, therefore, did not err in sustaining defendants' objection to the admission of the mortgage in evidence. When the acknowledgment is properly made, but defectively certified, a party interested may have an action to correct the certificate. (Sec. 1202 C. C.) We see no objection to the joining this action with the action for foreclosure. The Court should have permitted plaintiff to amend her complaint and prove, if she could, that the acknowledgment was actually taken in compliance with the statute, and have judgment correcting the certificate. Judgment and order reversed, and cause remanded for proceedings in accordance with this opinion. DEPARTMENT No. 2. [Filed April 14, 1883.] HOME LOAN ASSOCIATION v. WILKINS ET AL., (KING, PETITIONER.) MORTGAGE-EXECUTION-JUDGMENT APPEAL-DEFICIENCY-UNDERTAKING POSSESSION. The undertaking in regard to a deficiency where the judgment appealed from is for the sale of mortgaged premises, is required only in the case of an appellant in possession of the premises adjudged to be sold. (945 C. C. P.) Supersedeas. Lawrence for petitioner. By the COURT (MYRICK, THORNTON and SHARPSTEIN, JJ.): This is an application for an order staying the execution of a judgment for the sale of mortgaged premises. The application is made on behalf of a party claiming an interest in the premises subsequent and subject to the mortgage. We are of the opinion that the moving party (King) is entitled to the order. The undertaking in regard to a deficiency where the judgment is for the sale of mortgaged premises (see Section 945 C. C. P.) is required only in the case of an appellant in possession of the premises adjudged to be sold. This we consider to be the meaning of the section just referred to, and in this opinion we all concur. Counsel for petitioner will prepare an order and submit it to the Court. DEPARTMENT No. 2. [Filed April 14, 1883.] ROEDING, RESPONDENT, v. PERASSO, APPELLANT. APPEAL-CERTIFICATE. Motion to dismiss appeal on Clerk's certificate for failure to file transcript in time granted. Appeal from Superior Court, San Francisco. Babb and Pringle for appellant. L. Quint for respondent. By the COURT (THORNTON, SHARPSTEIN and MYRICK, JJ.): The motion to dismiss the appeal herein is granted, the showing being sufficient. DEPARTMENT No. 2. [Filed April 18, 1883.] DYER, RESPONDENT, v. RYAN ET AL., APPELLANTS. STREET ASSESSMENT-DEMAND. A larger sum was demanded than was legally due under the contract, and for the reasons stated in Dyer v. Chase, 52 Cal. 440, the judgment is reversed. Appeal from Superior Court, San Francisco. Campbell, Fox & Campbell and Whittemore & McKee for appellants. Wood and Bates for respondent. By the COURT: This case is similar to Dyer v. Chase, 52 Cal. 440. A larger sum was demanded than was legally due under the contract, and, for the reasons stated in that case, the judgment is reversed and cause remanded. DEPARTMENT No. 2. [Filed April 14, 1883.] LINEHAN, RESPONDENT, v. JOOST, APPELLANT. FINDING NEW TRIAL. As there is some evidence tending to support the finding, the order denying the motion for new trial will not be disturbed. Appeal from Superior Court, San Francisco. Clark and Pillsbury for appellant. Lloyd Baldwin for respondent. By the COURT (THORNTON, MYRICK and SHARPSTEIN, JJ.): The finding that the defendant B. Joost obtained from the plaintiff an assignment of the lease in controversy without consideration and through fraud and deceit, is attacked on the ground that it is not justified by the evidence. We have carefully examined that which is relied on to sustain that finding, and have come to the conclusion that there is some evidence tending to support it. Such being the case, we cannot disturb the order denying the motion for a new trial. No error appearing in the record, the judgment and order are affirmed. |