Menke

Prior to December 17, 1896, the defendant, Menke, executed a note and mortgage to the assignor of plaintiff upon the wines, machinery, tanks and other personal property of a winery owned by said Menke, in Santa Clara county, and plaintiff was on said day the owner of the said note and mortgage. The defendant, Menlce, being on the said day indebted to respondents, Tuck and Johns, for grapes which they had sold to him, executed and delivered to them his note secured by a second mortgage upon the same property. This mortgage was duly acknowledged, was made in good 'faith, and with no intent to hinder, delay, or defraud any creditor or creditors, but it was not verified by any of the parties thereto as required by the code. After the said notes had been executed and the said mortgages recorded, and on the eighteenth day of January, 1897, the said Menke voluntarily executed to the sheriff of said county an assignment of all his property in trust for the satisfaction of the claims of his creditors under the provisions of the Civil Code.

On the twenty-eighth day of January, 1897, at a meeting of the creditors of said Menke, the appellant, Romer, was elected assignee and duly qualified…