Wilhoit v. Bryant

Belcher, C. C. The defendant M. E. Bryant, being insolvent, made an assignment for the benefit of his creditors, under the provisions of the Civil Code (sections 3449 to 3473), and the plaintiffs were his assignees. The assignment was of “ all his real estate, personal property, chattels, book-accounts, choses in action, and property of every name, nature, and description, wheresoever the same may be situate, save and except such property, land, tenements, and hereditaments, and all as are exempt by law from attachment and execution, as is fully described and set forth in the schedule hereto annexed, and made a part of these assignments, marked schedule A.” The schedule describes the several parcels of real property owned by the assignor, and among others, “ the southeast quarter of section 17, all in township 4 north, range 8 east, Mount Diablo meridian,” and adds: “Said lands are encumbered as follows: By three mortgages, .... and the southeast quarter of section 17 is encumbered by a homestead filing of the within assignor.” Then, after giving a list of the personal property, it says: “The following is a list of the exempt real property of the within assignor: The southeast quarter of section 17 in township 4 north, range 8 east, Mount Diablo meridian, the same being the homestead property of the within assignor, valued at five thousand dollars.”

The plaintiffs, after setting out in their complaint a copy of the assignment and schedule, and all the facts necessary to make the assignment valid under the provisions of the code, proceed to allege that defendant [266]Bryant conveyed to them the southeast quarter of said section 17, “ subject to a certain homestead theretofore filed upon the same” by him, “to the extent and value of five thousand dollars, and no more”; “that said real property did on said sixteenth day of February, 1886 (the date of the assignment), and does now, greatly exceed the sum of five thousand dollars in value, and is of the value of eleven thousand dollars, or thereabouts”; “ that all of the property of said Bryant that has come into the hands of these assignees, or of which they have any knowledge, including the property herein described, will not be sufficient to pay the creditors of said Bryant in full.” Wherefore they pray that the court appoint three disinterested freeholders “ to appraise and set aside to said Bryant, from said land herein described, his land as a homestead herein, of the value of five thousand dollars, and that plaintiffs be authorized and permitted to sell the remaining portion of said land under the provisions of their said deed aforesaid”; and further, that the court order and decree that “ defendants have no right, title, or interest in or to any of the land or premises herein, save and except the portion thereof that may be set aside to said Bryant as his said homestead.” . .