"This is an application or bill on the part of appellant (plaintiff below) to construe an instrument of conveyance made by defendants S. G. Dean & Co. to J. B. Greer, trustee, to be a general assignment for the benefit of creditors, and to appoint an assignee, and require him to qualify and give bond, and to administer the estate under the statute regulating general assignments for benefit of creditors. An injunction was prayed and granted, restraining the trustee from selling the property and paying out the proceeds. On trial and final hearing the court dissolved the injunction, and rendered judgment against plaintiff refusing the application, and plaintiff appeals. There is but one controlling question involved, and that is whether the conveyance by S. G. Dean & Co. to Greer is in legal effect a deed of trust in the nature of a mortgage, or an assignment for the benefit of creditors; and this question is raised by the single error assigned and submitted as a proposition, as follows: `The court erred in rendering judgment dissolving the injunction and refusing the prayer of the bill to adjudge the conveyance in controversy to be an assignment, because it appears from said conveyance and the evidence that said conveyance was made by S. G. Dean & Co. in contemplation of insolvency, and was in fact and in legal effect an absolute appropriation of their property to the payment of debts, and not a mortgage to secure debts
and the preferences of creditors therein were void.'
"Statement.
"The conveyance is as follows:
"`State of Texas, County of Camp.
"`Know all men by these presents: That we, S. G. Dean & Co., a firm composed of S. G. Dean, of said county and state, and William Morton, of the county of Gregg, and said state, for and in consideration of the sum of ten dollars to us in hand paid by J. B. Greer, of said state, and said county of Camp, the receipt of which is hereby acknowledged, and for the further consideration hereinafter to be mentioned in this instrument in writing, have sold, and by these presents do sell, transfer, convey, and confirm, unto the said J. B. Greer and to his successor in this trust the following described property, to wit: All the tract or parcel of land situated in the counties of Camp and Upshur, and state of Texas, being 220 acres of land, more or less, a part of the J. Hicks survey, and being the land conveyed to one P. W. Tapp by Jot Gunter on the 5th day of April, A. D. 1892, which said deed of conveyance is recorded in Book 1, pages 21, 22, and 23, on the Deed Records of the said county of Camp, to which reference is hereby made for a more particular description of said land. Also one lot of land situated in the county of Camp, and state of Texas, on the south of Jefferson street in the town of Pittsburg, Texas, and fronting 30 feet on said street, and running back south one hundred and ten feet, and adjoining and lying immediately east of the drug store now occupied by Boren & Boyd, together with the one-story brick house situated thereon, as well as the awnings attached thereto; the said brick house now being occupied by us, and the same being the one where S. G. Dean & Co., composed of ourselves, have for a long time next preceding the date of these presents carried on a general merchandise store and mercantile business. Also our entire stock of goods, wares, and merchandise, store fixtures, furnitures, desk, iron safe, lamps, scales, trunks, mirrors, counters, shelving, chairs, stools, show cases, tools, thread cases, fixtures, etc.; in fact, all personal property of all and any kind whatever now situated in said brick house described above, belonging to us; said wares and merchandise and goods consisting principally of staple and fancy dry goods, groceries, staple and fancy, clothing, furnishing goods, boots, shoes, hats, caps, underwear, hosiery, ribbons, laces, notions, trunks, satchels, ladies' hats, cloaks, blankets, dress goods, table linen, hardware, cutlery, etc. Also one sawmill plant, together with engine and boiler, machinery attached thereto, with all pumps, belting, piping, tools, shed houses, carry log wagons, lumber carriages, logs and lumber, all the goods, wares, and merchandise situated in the commissary at the said mill, which is now situated upon a certain tract or parcel of land situated in said Camp county, Texas, which we do by these presents also convey to the said J. B. Greer and his successor in this trust, said tract of land described as follows, to wit: On the St. Louis Southwestern Railway Company's Railroad of Texas, in Camp county, Texas, and at the switch or near the same of said railroad known as "Cannon Switch," beginning at the southeast corner of a block of land bought by J. C. Eford from J. B. Simpson, August 7th, 1891, and running 320 feet front east, thence 408 and 3/8 feet west, thence 320 feet south, thence 408 and 3/8 feet west to the place of beginning; containing 30 acres more or less. References are here made to deed by J. B. Simpson to J. C. Eford, recorded in Book H of the Records of Deeds of Camp County, Texas. Also about 2,000,000 feet of pine timber in said county of Camp. Also two horses now on the farm and home of S. G. Dean, described as follows, to wit, in Camp county, Texas, two bay mare colts about two years old, one-half thoroughbreds. We hereby confirm, sell, transfer, and convey all of the foregoing property described in these presents, together with all and singular the rights, members,...
