Piggott v. Schram & Co.

64 Tex. 447 | Tex. | 1885

Walker, P. J. Com. App.

The first assigned error relates to the overruling of defendant’s motions to quash the attachment because of the alleged uncertainty and contradiction in respect to the amount of the indebtedness claimed by plaintiffs, as exhibited in the statements thereof in the petition, the affidavit for attachment and the recitals in the writ itself.

The record does not bear the construction which appellant urges. There is neither contradiction nor confusion in the statements referred to. The plaintiffs’ sworn account is an exhibit attached to and made a part of the petition. The account is for items running through the year 1881 and into the year 1882. The aggregate amount is $3,038.30. The plaintiff does not claim interest on any part of it previous to January 1,1882. At that date the account amounted to $3,015.56, interest at eight per cent, on which he claims from that date. The subsequent items of the account accruing in 1882 make the total or aggregate sum above stated, viz., $3,038.30. The plaintiffs’ petition, after thus stating the account, alleges that they have sustained damage by defendant’s failure and refusal to pay the debt in the sum of $3,450. This allegation of damage is not properly to be construed as an averment of the amount .of the indebtedness, especially where the specific facts constituting the amount of the plaintiffs’ debt are affirmatively and expressly stated and itemized. The attachment does not purport to be sued out for the plaintiffs’ damages, as contradistinguished from their debt, as such. All the proceedings harmonize with and are consistent with this statement of the plaintiffs’ claim as shown in the petition, affidavit and writ of attachment, and the court did not err in overruling the defendant’s motions to quash the attachment.

Second assignment of error: “ The writ of attachment having been issued for $3,038.30 only, the court erred in foreclosing the attachment lien, and ordering so much of the attached property to be sold as will satisfy the judgment, viz., $3,812.93, with interest thereon from date of judgment, said decree of foreclosure and order of sale being void for the excess over $3,038.30 and the costs of suit.”

The attachment law authorizes the seizure of “ so much of the property of the defendant as shall be sufficient to satisfy the demand of the plaintiff and the probable costs of the suit.” Art. 160, R. S. The “ demand ” of the plaintiffs was the principal and accrued interest, together with the interest accruing on their account up to judgment, and the costs of the suit. Art. 180, Revised Statutes, provides that if the plaintiff recover in the suit the attachment lien shall be foreclosed as in case of other liens. Art. 181, Revised Statutes, provides that when personal property has been levied on the judgment shall also be against the defendant and his sureties on his replevy bond for the amount of the judgment, interest and costs, or for the value of the property replevied and interest, according to the terms of such replevy bond.'

It is too plain for controversy that the same rule applicable to mortgages and other like liens applies to the foreclosure of attachment liens; and that the right to decree a foreclosure and sale of the property attached for the interest and costs accruing up to the date of the judgment is clear and unquestionable.

The appellant assigns numerous grounds of error, mainly relating to the charges given by the court to the jury. The case was tried by the court under a view which seems to have been entertained by the court, that, if the plaintiffs’ attachment was executed on the property before the deed of assignment was filed for record in the county clerk’s office, notwithstanding it may have been executed and delivered to the assignee before that period of time, that the rights of an attaching creditor would prevail against the assignment if the assignor was guilty of a fraudulent intent to defraud his creditors in making the assignment, and that evidence was admissible to establish such fraud, and, if so found, that the deed of assignment would be deemed fraudulent and void as to creditors.

If we have properly interpreted the view entertained by the court, as developed in a series of propositions contained in quite a lengthy charge, we conceive that it is founded in a misconception of the law applicable to this case. It is an erroneous idea, we think, to confound a fraudulent intent to defraud creditors with the question or issue presented under the facts. The deed of assignment bore date on the 27th of February 1882. The assignee, Lambert, accepted the trust on the night of the 27th of February, 1882, or on the 28th of February, 1882. He was in possession of the goods as assignee when the writ of attachment was executed. He proceeded to qualify under the law by giving bond as assignee, and acted as such for a month, when he turned the property back to the assignor, as he testified, under the direction of one Hugo, one of the principal creditors of the assignor, and who he understood represented all' the creditors except the plaintiffs and another firm who had attached the property. The deed of assignment was, it seems from the sheriff’s return and the clerk’s certificate of registry, filed for record in the county clerk’s office at 3:50 P. M., a few minutes after the time when the writ of attachment was issued, and a few minutes before it was executed. The evidence as to acts tending to show that the defendant was about to transfer his property to defraud his creditors referred alone to the deed of transfer or assignment to Lambert for the benefit of his creditors. The evidence tended to show, also, that he was influenced to do so from immediate expectation that the plaintiffs were about to sue out an attachment against him.

Under facts like these, the assignment law does not recognize or regard the intent of the debtor who sees proper to make an assignment of his property. It is sufficient that he does in fact do so —■ that he shall actually make a conveyance to an assignee for the benefit of his creditors which shall be sufficient to convey the property, and if he shall have in fact done so, a creditor cannot attach the property thus conveyed. The statute (General Laws, Acts of 1879, p. 58), regulating assignments for the benefit of creditors, provides that the assignee shall forthwith, after the execution and delivery of the deed of assignment, cause the same to be recorded as provided by that statute, and that he shall execute the bond required by the same law; but the statute does not make the validity of the assignment, and its completeness to pass the title to the property, depend upon the act of filing the deed for registry. Section 1 of the same statute provides that the deed of assignment “ shall be proved or acknowledged and certified and recorded in the same manner as provided by law in conveyances of real estate or other property.” The provisions of the statute are to be construed so far beneficially to the creditors, for whose benefit its provisions are intended, as to give effect to such advantages and benefits as its enactments are intended to confer on them as a class of persons; and so as not to be defeated by a construction that would place it in the power of a single creditor or a few creditors to frustrate them. If a failing debtor, intending to transfer and assign his property for the benefit of his creditors, has made a valid transfer and assignment to an assignee, or is in the act of doing so, it would be in fraud of the law of assignments to allow a creditor to issue an attachment before it xvas practicable, perhaps, for the assignee to reach the county clerk’s office and cause the deed to be filed for record or to be recorded. The transactions involved cannot be instantly nor simultaneously consummated; and that construction would be unreasonable and destructive of the equal and just operation of the law which would thus require the act of recording of the deed of assignment to determine its vitality and power to invest the assignee with the title to the property as against attaching creditors. The statute exacts no such test; the object of requiring promptness in recording the instrument is to give notice of its contents to all whom it may concern; but as between those who are creditors at the time when the deed of assignment shall have been made, the trust accepted, and being openly and notoriously acted upon by the assignee, the recording of it cannot be taken as a test of the efficiency of the deed; it is valid to convey the property before it shall have been recorded. Recording the instrument as soon as it was done in this case — on the day when the assignee probably received it,— would at all events seem to be a substantial compliance with even the most technical and stringent construction of the requirements of the law.

On the question of the fraudulent intent to defeat, delay or defraud creditors, as applied to this assignment, the case of Blum v. Welborne, 58 Tex., 157, need only be referred to without comment. The opinion in that case expounds with sufficient fullness the true doctrine for the construction of the assignment act, without further remark on the subject; and see, also, Keating v. Vaughn, 61 Tex., 521.

Under the view taken by us of the essential issues in the case and the rules of law applicable to them, we do not perceive the relevancy, in behalf of the plaintiffs, of the evidence mentioned in the second bill of exceptions. The deed of assignment to Lambert did not tend to show that the defendant was about to transfer his property to defraud his creditors, under any view of the pleadings which now occurs to us. If the deed did effect a transfer of the property, the law deemed it valid for the purpose, whether intended to be fraudulent in its consequences or not. See Blum v. Welborne, supra. An assignment is therefore to be regarded, in laxv, as conclusively not intended to defraud creditors in the sense of the attachment law, as applied between creditors of a common debtor, where the debtor is about to transfer or has transferred his property for their benefit. The manner of managing the property which was assigned and transferred whilst in the hands of the assignee, as tending to show a fraudulent intention on the part of the defendant, was equally irrelevant, as evidence offered by the plaintiffs.

It is not deemed necessary to follow the numerous grounds of error assigned in regard to the charge of the court, as the case will be tried again under aspects of the law applicable to the questions in the case so different from those which were submitted on the trial. We shall therefore pretermit further discussion of them.

We are of opinion that the judgment be reversed and the cause remanded.

Reversed and remanded.

[Opinion adopted June 26,1885.]