Moody v. Carroll

Decision Date15 May 1888
Citation8 S.W. 510
PartiesMOODY <I>et al.</I> v. CARROLL.
CourtTexas Supreme Court

Owsley & Walker, for appellants.


The principal question for our determination in the case is, is the assignment made by Fain, Peery & Shelton to J. A. Carroll, for the benefit of creditors, void on its face? It is a general assignment of all partnership and individual property of every kind for the benefit of all creditors of the firm, providing for such creditors as accept under it, requiring bond of the assignee, and in all its provisions indicating that the intention was to assign under the statute. When such an assignment is made, it comes under the statute, and must be executed in the manner provided by the statute, even though some of its terms may be at variance with the law. The law becomes a part of the deed, and will control the assignee in the distribution and management of the estate. He becomes an officer of the law, and must be governed by it under directions of the court. Fant v. Elsbury, 68 Tex. 6, 2 S. W. Rep. 866; Schoolher v. Hutchins, 66 Tex. 328, 329, 1 S. W. Rep. 266. The creditors can compel the assignee to conduct the administration as the law prescribes, and can maintain their rights in the courts, whether the instrument of assignment designates them or not. It does not appear that there were any creditors of the individual members of the firm, but, if there were, we do not understand the law to require us to hold the assignment void. They would be included by the law, and could enforce their rights, whatever they might be, by suit against the assignee, without disturbing the assignment or having it declared illegal.

It is contented that the assignment is void because it provides that the assignee is authorized to sell the property on a credit. If any clause in the deed could be so construed, it would not for that reason be held void. The creditors can compel the assignee to administer the estate for the best interest of all concerned. The question was before the supreme court in Keller v. Smalley, 63 Tex. 516. Justice STAYTON in that case said: "Cases may arise in which for many reasons sales on a credit would best subserve the interests of all, and in such case the creditors could compel the assignee so to sell; and on the other hand cases may arise in which it would be to the advantage of creditors that the property should be sold for cash, and in such case the assignee who might desire or intend to sell on credit could be compelled to sell for cash. The rules by which the validity of assignments not statutory are to be determined have not conclusive application to assignments made under the statute." The court referred to the amended act of 1883 as authority for the decision in which it is declared "that no fraudulent act, intent, or purpose of the assignor or assignee shall have the effect to defeat the assignment, or deprive the creditors consenting thereto from the benefits thereof, but any such fraudulent act, intent, or purpose on the part of the assignee shall be sufficient for his removal." The foregoing amendment contains only the principles that were announced in 1882 by the supreme court in the case of Blum v. Welborne, 58 Tex. 162, 163, where it is held that "no act of the assignor or assignee, or of both, at the time the assignment is made, or preceding it, but in contemplation of it, done with intent to defeat, delay, or defraud creditors, will authorize a creditor to treat the assignment as void," etc. The amended act of 1883 (sixth section) is then only declaratory of the law as it was before. We are not called upon to add any additional argument for holding that an assignment conferring the power upon the assignee to sell the property on a credit will not render the assignment void. It is settled by the authorities referred to. The estate will be managed according to the best interests of the creditors, regardless of the direction given in the assignment. Schoolher v. Hutchins, 66 Tex. 329, 1 S. W. Rep. 266. It has also been decided that property fraudulently conveyed, or debts fraudulently secured and preferred in contemplation of insolvency, will not vitiate the assignment. Blum...

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7 cases
  • Sorenson v. City Nat. Bank
    • United States
    • Texas Supreme Court
    • May 16, 1932 this suit. This includes a reasonable attorney's fee. Johnson & Co. v. Blanks, 68 Tex. 495, 4 S. W. 557; Moody v. Carroll, 71 Tex. 148, 8 S. W. 510, 10 Am. St. Rep. 734; Willis v. Heath, 75 Tex. 124, 12 S. W. 971, 16 Am. St. Rep. 876; Berry v. Davis, 77 Tex. 191, 13 S. W. 978, 19 Am. St.......
  • Pan American National Bank v. Ridgway
    • United States
    • Texas Court of Appeals
    • January 12, 1972
    ...Curtis v. Ford, 78 Tex. 262, 14 S.W. 614 (Tex.1890); Willis & Bro. v. Heath, 75 Tex. 124, 12 S.W. 971 (Tex.1889); Moody v. Carroll, 71 Tex. 143, 8 S.W. 510 (Tex.1888); Hanson v. Guardian Trust Co., 150 S.W.2d 465 (Tex.Civ.App.--Galveston, 1941, writ dism'd); May v. Donalson, 141 S.W.2d 702 ......
  • Commercial Standard Ins. Co. v. Merit Clothing Co., A-9863
    • United States
    • Texas Supreme Court
    • March 25, 1964
    ...of the debts and the costs and expenses of executing the assignment. Article 271; Schoolherr v. Hutchins, 66 Tex. 324; Moody v. Carroll, 71 Tex. 143, 8 S.W. 510; Craddock v. Orand, 72 Tex. 36, 12 S.W. 208; Schumacher Co. v. McLane, Tex.Civ.App., 89 S.W.2d 477, no writ The judgment of the tr......
  • De Walt v. Zeigler
    • United States
    • Texas Court of Appeals
    • December 13, 1894
    ...v. Hutchins, 66 Tex. 324, 1 S. W. 266; Wynne v. Hardware Co., 67 Tex. 40, 1 S. W. 568; Blum v. Wettermark, 56 Tex. 85; Moody v. Carroll, 71 Tex. 144, 8 S. W. 510. The county court was also without jurisdiction to entertain such a suit as plaintiff should have brought, the value of the prope......
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