71 Tex. 400 | Tex. | 1888
There being no appearance here
for appellees, we regard appellant’s brief as a proper presentation of the case. (Rule 40, Supreme Court Rules.)
Appellant brought this suit August 31, 1886, against appellees G. W. Todd, Henry H. Todd, Louis Bream and D. Doole.
The prayer is for the removal of the assignees and appoint
To this petition appellees answered by general demurrer, -special exception setting up the statute of limitation, and exception and plea to the jurisdiction of the court upon the ground that appellant’s claim was not sufficient in amount to give th© court jurisdiction, all of which were sustained by the court, and judgment entered dismissing the suit.
The correctness of this judgment is questioned by appellant, and the question is presented here by proper assignments of error.
The prayer of the petition is very comprehensive, and seeks a variety of relief. But relief can not be granted upon th© prayer, beyond what is authorized by the allegations of the petition. Under a prayer like this the court could have granted such relief as the case made by the allegations of the petition demanded, and refused to grant so much of the relief prayed for as was not authorized by the petition.
It is obvious that the primary object of the suit was the removal of the assignees, and the appointment of others to per. form the trust in the interest of all creditors who had accepted the benefit of the assignment, and shown themselves entitled to participate in the distribution of the assigned estate. It appears from the allegations of the petition that the assignees were not only guilty of- the most flagrant laches, but also guilty of willful perversion of the trust and misapplication of the trust estate.
Upon the execution of the deed of assignment, the title to all properv owned by the assignor, not exempt from forced sale, passed from the assignor, and upon the qualification of the assignee it vested in them for the purposes of the trust. In accepting the trust, they assumed to execute it according to
Section 14 of the act of 1879, in relation to assignments for the benefit of creditors, General Laws, page 60, provides that, “if any assignee becomes unsuitable to perform the trust, refuses or neglects so to do, or mismanages the property, the county judge, or judge of the district court, may, upon the application of the assignor, or one or more of the creditors, upon reasonable notice to all parties interested, by publication or otherwise as such judge may direct, remove such assignee, and in case of vacancy, by death or otherwise, shall appoint another in his place who shall have the same powers and be subject to the same liabilities as the original assignee.”
This statute expressly gives the right to “one or more” of the creditors to make the application for the removal of the assignee, and the statute does not make the right, in any way, dependent upon the amount of the claim due to the creditor making the application.
It was held by this court, in Blum v. Wettermark, 56 Texas, 80, that the district court, under its general equity jurisdiction, has the power to remove an assignee and appoint another to-execute the trust. Such proceeding inures to the benefit of all creditors interested in the assigned estate, and we are unable to discover any reason in support of a rule of law that would
The statute of limitation was interposed in behalf of all of the appellees, and was sustained as to all of them. In so far as the suit was an application for the removal of the assignees and the appointment of others, we have determined that neither limitation nor the plea to the jurisdiction was available. Under the facts stated in the petition the court might have entered judgment removing the assignees, appointing others and canceling the conveyance made by the assignees to the assignor, the title to the property vesting by operation of law in the new assignees. If the assignees had had the right to convey the trust estate to the assignor, their power to convey was joint, and .the deed by one of them could not operate as a conveyance of the title. (Hart v. Rust, 46 Texas, 574.) There was, therefore, no limitation nor want of jurisdiction as to the appellee, G. W. Todd.
In so far as it is sought to recover judgment against the assignees, and the surety on their bond, the prayer is for judgment for the amounts due all creditors entitled to distribution under the assignment, to the extent of money withheld or misapplied by the assignees. This judgment is asked only in the event that it should appear that the assignees held funds which such creditors were entitled to have applied to the payment of their claims. In' this particular the purpose of the suit was to compel the assignees to account, and to obtain a judgment establishing the extent of their liability to the trust estate; and we think the district court had jurisdiction to hear and determine such a suit, without regard to the amount claimed by appellant, (Wynne v. Hardware Co., 67 Texas, 42.) Such ,a judgment might have been rendered in favor of appellant for the use of itself and other creditors, directing that the proceeds arising therefrom be deposited in the court, to be distributed in compliance with the terms and conditions of the assignment and the provisions of the statute. The equity jurisdiction of the court having been invoked for the purpose of compelling the performance of the trust, for the benefit of all consenting creditors, the prayer being in the alternative, we think the court had the power to grant the necessary relief, either by .removing the original assignees and appointing
It is not in terms alleged in the petition that appellant had filed with the assignees a statement of the nature and amount-of its claim, as required by section 7 of the statute, but there is no special exception to the petition upon this ground. It is alleged in the petition that “appellant accepted under the assignment,” and that the assignees made two payments on its-claim. As against a general demurrer, the presumption must be indulged that the assignees did not pay the funds of the-trust estate to a person not entitled to receive them, and that appellant not only consented to the assignment, as required by section 5 of the statute, but filed the statement and affidavit, as required by section 7, and thereby became an accepting creditor, entitled to participate in the distribution of the assets of the estate.
For the errors indicated, we are of opinion that the judgment of the court below should be reversed and the cause, remanded.
jReversed and remanded.
Opinion adopted October 16, 1888.
Stayton,
Chief Justice.