Watkins v. Wilhoit

Beatty, C. J. This action is in the nature of a creditor’s bill in equity to subject property in the hands or under the control of the defendants, Wilhoit and Lang-ford, to the payment of a judgment at law against defendant Bryant, in favor of the plaintiff.

A demurrer to the complaint having been sustained, [397]and the plaintiff haying declined to amend his complaint, judgment passed for defendants.

The plaintiff has appealed from the judgment upon the judgment-roll containing a bill of exceptions showing that the demurrer was sustained on the grounds “that the complaint does not state facts sufficient to constitute a cause of action, and that the action is barred by the statute of limitations.”

The complaint shows that on June 2,1890, the plaintiff recovered a judgment against Bryant for the sum of two thousand three hundred and forty-two dollars and sixty cents, on a promissory note made by the latter to the former on January 17; 1885, and that no part of the judgment has been paid.

That before and on February 16, 1886, said Bryant was indebted to others besides the plaintiff, and was then, and ever since has been, insolvent, though he was then the owner of considerable real and personal property in the county of San Joaquin, where he resided; that on said sixteenth dáy of February, 1886, he executed to defendants Wilhoit and Langford, and one Charles Bamert, a deed purporting to convey to them all his real and personal property, except such as was exempt from execution, in trust for the benefit of all his creditors, without preference to any, except as provided by law, “ to sell and dispose of said real estate and personal property, and to collect the said book accounts and choses in action, 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, with the right to compound for the said book accounts and choses in action, taking a part for the whole where and when the trustees deem and decree it expedient so to do.” Then, after applying the proceeds to the payment of his debts according to law, to pay the surplus, if any, to him, Bryant. This instrument, with an inventory of the property thereby assigned attached thereto and made a part thereof, and the written acceptance of the [398]