Duncan, Wyatt & Co. v. Taylor
| Decision Date | 20 March 1885 |
| Docket Number | Case No. 1956. |
| Citation | 63 Tex. 645 |
| Court | Texas Supreme Court |
| Parties | DUNCAN, WYATT & CO. v. A. M. TAYLOR ET AL. |
OPINION TEXT STARTS HERE
APPEAL from Red River. Tried below before the Hon. R. R. Gaines.
E. H. Brittan, a hardware merchant in Clarksville, Texas, gave Taylor & Chambers, attorneys, a mortgage on his stock of goods to secure a number of creditors whose claims were in the hands of Taylor & Chambers for collection. This mortgage was given on the 31st day of October, 1881, and on the 14th day of November following Taylor & Chambers took possession of the goods by virtue of the provisions of the mortgage. On the same day, but after they had acquired possession of the goods, the appellants attached them as the property of E. H. Brittan.
This suit was instituted by Taylor & Chambers against E. H. Brittan, the appellants, and other attaching creditors, asking for an injunction, receiver, etc.
The defendants answered, alleging among other things that the mortgage was fraudulent and void in law and in fact.
The court held that the mortgage was valid, etc. From this judgment an appeal was taken to the supreme court.
Sims & McDonald, for appellants.
Taylor & Chambers, for appellees, cited: Crow v. Red River Co. Bank, 52 Tex., 362;Peiser v. Peticolas, 50 Tex., 638; Jones on Chattel Mortgages, 178; Nash v. Norman, 5 Mo. App., 545.
In the case of First Nat. Bank of Texas v. Lovenberg, Assignee, etc., decided a?? few days since, it was held that liens coming within the purview of the seventeenth section of the act of March 24, 1879, regulating assignments for the benefit of creditors, were absolutely void. The question in that case arose between the mortgagee and an assignee for the benefit of creditors, and no point was raised as to the constitutionality of the above section of the assignment law.
In the present appeal it is urged that this section is invalid, being within the prohibition of art. 3, sec. 35, of our state constitution, which provides that no bill shall contain more than one subject-matter, which shall be expressed in its caption.
The caption of the act of March 24, 1879, is: “An act in relation to assignments for the benefit of creditors, and to regulate the same, and the proceedings thereunder.”
In National Bank v. Lovenberg, above cited, we held that the intent of this act was to bring about a general distribution of the assets of an insolvent debtor among all his creditors, or among such as would accept of the assignment and release the debtor from all further liability. In order to bring about this result, it was requisite that there should be no concealment or reservation of any portion of the insolvent's estate liable to execution, for the benefit of himself or of any other person colluding with him to defeat a fair and honest assignment. It was further held that, in the case of merchants, this object of the law would be defeated if the debtor could, under the protection of a lien upon his stock in trade, given to one or more creditors, continue to sell his goods in the usual course of trade. This would allow him the same control of his mercantile business as before, and place it in his power to enjoy all its benefits subject only to an accounting for a sufficient amount of the proceeds to satisfy the creditors with whom he had treated for such an advantage.
The effect of such an arrangement upon assignments for the benefit of creditors is very apparent. No merchant would ever make an equal division of his assets amongst all his creditors and suspend his business, when he could continue business with the stock then on hand, by sharing its proceeds with a portion of his creditors to the exclusion of the remainder. It is as much the design of the act to bring about an assignment in case of the insolvency of the debtor, as to effect a fair and equal division in case the assignment should be made. The latter would necessarily result from the former, if the...
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...“We have no right to engraft upon the statute any conditions or provisions not placed there by the legislature.” Duncan, Wyatt & Co. v. Taylor, 63 Tex. 645, 649 (1885). Because section 154.066 is unambiguous, we decline to read into the statute an extra proof requirement that the Legislatur......
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...“We have no right to engraft upon the statute any conditions or provisions not placed there by the legislature.” Duncan, Wyatt & Co. v. Taylor, 63 Tex. 645, 649 (1885). Because section 154.066 is unambiguous, we decline to read into the statute an extra proof requirement that the Legislatur......