Case No. 1631 | Tex. | Nov 28, 1884
By an agreement of counsel contained in the record, the only issue in the case is “ as to the legality of the-assignment, . . . and the question whether it was or is fraudulent or void as to the defendants Schneider & Davis, and whether the alleged transfer by M. M. Terry and B. Terry to J. E. Thomas, and from him to plaintiffs, was fair, legal and just, and, if there was. fraud or covin in the transfer, whether the plaintiffs were charged with notice of the same.”
The question whether the deed of assignment was made with fraudulent intent was submitted to the jury by the charge; and the-result of their finding is that there was no such intent.
It seems to us that the real questions to be decided might be more clearly stated thus: Was the deed sufficient to pass all the property
The deed sets out that the makers are “ indebted to divers persons in considerable sums of money which they are at present unable to pay in full, and they are desirous to convey all their property for the benefit of their creditors.”
They thus convey “all their lands, tenements, hereditaments, goods, chattels, property and choses in action of every name, nature and description, wheresoever the same may be, except such property as may be by the constitution and laws of the state exempt from forced sale.”
Upon its face the deed contemplates three parties or sets of parties: the parties of the first part (the makers), the party of the second part (the assignee), and the parties of the third part, who are described as “ the several persons, creditors of the parties of the first part, who have executed or shall hereafter execute or accede to these presents.”
The closing sentence of the deed is as follows: “And the parties of the third part, by their signatures hereto, express their consent to this arrangement, and accept the provisions for them made herein.”
There are no signatures to the deed except those of the makers and the assignee; nor is there in the record any evidence that the creditors, or any of them, had signified in any way their acceptance of the terms of the deed.
We apprehend, however, that creditors would not be limited to the method of expressing their assent which is suggested in the deed.
The deed of assignment was sufficient in its terms to pass to the assignee all the property, whether partnership or individual, which belonged to the makers, and was not void. See Coffin v. Douglass, 61 Tex., 406" court="Tex." date_filed="1884-04-18" href="https://app.midpage.ai/document/coffin-v-douglass-4894390?utm_source=webapp" opinion_id="4894390">61 Tex., 406.
Since this case was decided in the court below, many of the questions discussed by counsel have been definitely settled. See Coffin v. Douglass, supra, and Keating v. Vaughn, 61 Tex., 518" court="Tex." date_filed="1881-05-09" href="https://app.midpage.ai/document/keating-v-vaughn-4894415?utm_source=webapp" opinion_id="4894415">61 Tex., 518.
The principal and most plausible objection which appellants urge against the validity of the assignment is this:
They allege that M. M. Terry owned no property of any kind; that he was not a partner in the business of Mrs. Rachael Terry;
But if all this were true, it did not avoid the assignment or justify the seizure of the goods by appellants.
Appellants insist that they are the separate creditors of Mrs. R. Terry, and that they became such by selling her goods with the distinct understanding that M. M. Terry had no interest in the business. In this they are sustained by the record.
But, admitting that this is so, still they need not have seized the property.
They could have had their rights protected by coming in under the assignment and placing the facts before the court, so that they could be acted on in the distribution of the proceeds of the property among the creditors and claimants.
If M. M. Terry really had no interest in the goods (as he claimed to have), the mere fact that he joined in the execution of the assignment would give no rights to his individual creditors.
Our courts, as courts of equity, have an enlarged jurisdiction in such cases. “ General assignments,” says Mr. Justice Roberts in Carleton v. Baldwin, 22 Tex., 730, “in trust for the benefit of creditors, with the rules pertaining to them, . . . may be said to be the creatures of courts of equity.”
The act of July 24,1879 (R. S. App., p. 6), instead of limiting has rather strengthened and enlarged their jurisdiction.
It was passed in order that the property of those who cannot pay their debts, and who make assignments, may be disposed of under the eye of the court, and the proceeds equitably distributed among their creditors without unnecessary cost and expense.
It is said in the brief of counsel for appellants that the assignee had not given a bond. The record contains no intimation of the sort, nor was any such objection made to the assignment when it was offered in evidence, though objections were made to its introduction and a bill of exceptions reserved. If such were the fact, the fourteenth section of the act above referred to was an ample remedy to the parties interested in the property.
Without noticing the remaining objections to the judgment, our opinion is that it should be affirmed.
Affirmed.