27 S.W. 781 | Tex. App. | 1894
This suit was brought by appellee, John T. Mayo, November 16, 1891, against W.Y. Pearce and the sureties on his official bond, and appellant. Appellee alleges, in substance, that on the 25th day of August, 1891, E.G. Brewer and G.G. Peterman, composing the firm of Brewer Peterman, made, executed, and delivered to him a deed of trust, by which they conveyed to him all their stock of goods, wares, and merchandise, and all notes and accounts of said firm, in trust, for the purpose of satisfying their creditors in the order named in said instrument. That, on the day of the date of said instrument, he accepted said trust and took actual possession of the property therein conveyed, and was proceeding to execute said trust, when said sheriff, acting under a writ of attachment issued out of the District Court of Brown County, at the instance of appellant, in a certain cause wherein appellant was plaintiff and said Brewer Peterman were defendants, levied upon, seized, and took possession of a portion of said goods, wares, and merchandise, of the value of $1631.23.
On May 3, 1892, appellant filed its first amended original answer, in which among other things it pleaded:
1. That said deed of trust was fraudulent and void as to appellant, in that a very large portion of the indebtedness claimed therein to be owing the City National Bank of Brownwood, and for which said deed of trust provided payment, was for usurious interest.
2. That at the time of appellant's levy none of the parties named as creditors or beneficiaries in said deed had ever adopted or ratified same, or accepted its provisions; that none of said creditors or beneficiaries had ever been consulted or their acquiescence sought as to the making of said deed of trust in their favor at the time or before same *167 was executed, or before said levy was made, and that they had no knowledge of its existence, or of any intention to make it, at the time of its execution, for which reason said levy operated to give a prior lien on the goods seized by virtue thereof over any attempted to be given by said deed of trust.
3. That, at the time of the execution of said instrument, the said Brewer Peterman were heavily indebted and insolvent; that their indebtedness was greatly in excess of all their estate, both individual and partnership; that the property attempted to be conveyed by said instrument was all the property owned by said firm of Brewer Peterman subject to execution under the laws of this State; that, although said instrument provides, in substance, that any surplus remaining after satisfying the beneficiaries named therein should be returned to said Brewer Peterman, the indebtedness mentioned therein was so greatly in excess of the value of the property attempted to be conveyed thereby, that it was not contemplated or intended by said Brewer Peterman at the time of its execution that any surplus would remain after satisfying said beneficiaries, nor did they ever intend to assert their equity of redemption; but that it was intended and contemplated by them, at said time, that said property should pass absolutely and unconditionally, for which said reasons said instrument was intended to operate as a general assignment of all the property of said Brewer Peterman, and E.G. Brewer and G.G. Peterman, and providing, as it does, in terms for the conveyance of only a part of said property, to wit, the partnership and not the individual property of the grantors; and, not being otherwise executed according to law, is wholly void and inoperative under the laws of this State.
The appellee, by supplemental petition, excepted to the sufficiency of appellant's answer, for the reasons stated in appellant's first, second, and fourth assignments of error, all of which exceptions the court sustained, to which appellant excepted.
A trial on May 4, 1892, resulted in a verdict for appellee for $1500.
The court erred in sustaining the demurrer to that part of the answer that alleged that the creditors named and preferred in the deed of trust had not accepted the benefits of that instrument prior to the levy made by appellant. In the recent case of Milling Company v. Eaton, Guinan Co.,
Notwithstanding the ruling of the court in sustaining the demurrer to the answer, it seems evidence was heard tending to show that some of the creditors named in the instrument had not accepted its terms before the levy made by appellant; and there was also evidence showing that some had accepted prior to that time. If the evidence as to the value *168 of the property conveyed by the deed of trust had shown that it was not of more value than sufficient to satisfy the claims of those creditors who had accepted prior to appellant's levy, we would not disturb the judgment of the lower court, as the ruling of the court upon the demurrer just discussed would be harmless. But the evidence in this respect is unsatisfactory, as we can not tell from the record with certainty what that value is.
In this connection the appellant contends, that as to the amount of those claims of the preferred creditors who had not accepted the benefits of the deed of trust prior to their levy, they, by virtue of their levy, are entitled to the fund such creditors would have received, to the exclusion of accepting creditors named in the instrument, after the creditors who have failed to accept; in other words, that the fund that should have gone to those nonaccepting creditors is subject to appellant's claim in preference to the claims of consenting creditors who stand listed in the instrument as preferred creditors after those who have not consented.
We can not agree with the appellant in this contention. The entire property mentioned in the instrument was conveyed to the trustee as a fund to secure the payment of all of the creditors preferred and named. The instrument, although it may fail as to the nonaccepting creditors, will be enforced as to those who have accepted its terms, and their claims are entitled to be paid in preference to the claims of creditors who are not named in the instrument. The appellant was not a party to the deed of trust, and it acquired no prior right by virtue of the levy of the writ of attachment to those creditors who were preferred by the terms of the deed of trust, and who had accepted its benefits before the levy.
The appellant insists that the appellee, as trustee named in the deed of trust, can not maintain this action for the value of the property levied upon and seized by the appellant.
The appellee does not stand in the attitude of a naked mortgagee, but of a mortgagee or trustee in possession. The property when seized by appellant was in his possession as a trust fund by virtue of the terms of the instrument in question. Under such circumstances, he may maintain an action to recover the property or its value. Willis v. Satter field, 20 S.W. Rep., 155; Schmick v. Bateman,
The plea presenting the question of usury was not sufficient. The facts constituting the usury were not set out or averred, nor was the plea verified, as required by the statute. Sayles' Civ. Stats., art. 1263.
There was no error in sustaining the demurrer to that part of the answer that averred that the deed of trust was intended as a general assignment, and that as such it was invalid, as it did not provide for a transfer of the individual property of members of the firm of Brewer Peterman. The answer in this respect did not state that the members of the firm had or owned any other property than that transferred by the instrument. This should have been averred. If, as a fact, the *169 instrument was intended as a general assignment, and should be so construed, it would not be invalid for the reason that it failed in terms to convey the individual property of the members of the firm, if in fact they owned none.
As we have reversed and remanded the case for another trial, and in view of the fact that the defects in the appellant's pleading pointed out may be remedied, and owing to the fact that the issues suggested by the pleading are presented and discussed in the briefs of both parties, we think it best to indicate our opinion of the law upon the questions, so that if they arise again they may be determined in accord with the views here expressed.
The defense of usury is generally regarded as a personal privilege lodged in the defendant who is liable for the debt; but this general rule is subject to exceptions, and this case may fall within one. By force of the laws of this State, usury is in effect declared to be illegal (Maloney v. Eaheart,
There is no rule of equity or law that will deny the right of a debtor to voluntarily apply his property to the liquidation of an illegal demand, provided the rights of others interested in the property are not affected; but when this is attempted by an insolvent debtor, to the prejudice of his bona fide creditors, it presents a case in which justice demands that the satisfaction of the illegal claim shall stand postponed to await the satisfaction of those demands that are just. Therefore, we *170 think the appellant has such an interest in the property of the insolvent debtors as would entitle them to urge the defense of usury.
If the plea presenting the issue that the instrument in question, although in form a deed of trust, was in fact intended as a general assignment, had been sufficient, we think parol evidence would, as between the parties to this suit, have been admissible, in order to determine the meaning and effect to be given to the instrument. The appellant was not a contracting party to the deed of trust, and was a stranger to it. Therefore, the rule of law that prohibits parties to written contracts, unambiguous in expression, from denying or contradicting their legal effect by parol evidence, can not be invoked in order to deny the appellant the privilege and right to show the true effect and meaning of the contract and the intention of the parties to it. Hughes v. Sandal,
If the instrument could be shown to be a general assignment by insolvent debtors, it would be valid only in the event it conveyed the property of the individual members of the firm — provided there was such property subject to execution — as well as the property of the firm. Donoho v. Fish Bros. Co.,
The case at bar is distinguishable from McIlhenny Co. v. Miller,
Partial assignments may be permitted by solvent debtors. But in this case, under the averments of the answer, the makers of the instrument were, as a firm and as individuals, insolvent, and such being the case, they are only permitted to execute a general assignment under the statute regulating assignments. Fant v. Elsbury,
Reversed and remanded. *171