Francisco

In October, 1888, Mrs. M. E. Edmonston, being the owner of certain household furniture then situate in the Ramsay House, at Los Ángeles, executed a bill of sale thereof to Martha O’Hara for the sum of $825, and at the same time received from her a lease of the same furniture until February 1, 1889, that being *181 the date at which a lease of the Ramsay House would expire. On the first day of February, 1889, Mrs. O’Hara made demand of Mrs. Bdmonston for the possession of the furniture, and upon being refused such possession, on the next day began an action of claim and delivery therefor. At the time of ‘making the bill of sale, Mrs. Bdmonston was indebted to various parties, and on the morning of February 2d made an assignment to the plaintiff for the benefit of her creditors, which was filed for record in the recorder’s office at ten minutes after nine o’clock of that morning. The plaintiff did not, however, take possession of the furniture on that day, and, later in the day, the defendant Aguirre, as the sheriff of the county, took the property under directions therefor given by the plaintiff in the action of Mrs. O’Hara, and “ when the plaintiff went there two or three days…

I am unable to concur in the views expressed by the majority in this case. I think the j udgment should be affirmed.

It is not denied that the conveyance was void as to creditors, under section 3440 of the Civil Code; but it is claimed that the assignee acquired no greater right than the assignor had in the property at the time of the sale, — that the assignee is merely the representative of his assignor, and does not represent the creditors.

It must be admitted that under the common law of assignments ti e assignee stands in the place of the assignor, and can assert no right to the property which the assignor did not have, but the rule of the common law is not applicable here; the rights of the parties are *188 to be determined under the statute relating to assignments for the benefit of creditors. The duties and powers of assignees under the statute are very different from the duties and powers of assignees at common law.

Section 3449 of the Civil Code provides that an insolvent debtor may execute an assignment of property to one or more assignees, in trust for the satisfaction of his creditors, subject, however, to the provisions of the code relative to trusts and fraudulent…