"The Court of Civil Appeals of the Third Supreme Judicial District of Texas certifies that the above styled and numbered cause is now pending in this court, and that the hereinafter questions certified arise upon the record of the case, and, as preliminary to the questions certified, we make the following statement:
"The plaintiffs in error, as creditors of the Milam County Bank and W. F. & M. F. Crawford, brought this suit against A. P. McCord, one of the assignees of the estate of Crawford & Crawford and the Milam County Oil Mill Company to recover a part of the assigned estate or its value from McCord. The case was submitted in the court below to a jury under a full and comprehensive charge presenting the issues stated in the pleadings, and verdict and judgment were in favor of defendants in error.
"It is substantially alleged by the plaintiffs that the property of Crawford & Crawford and the Milam County Bank was transferred to defendant McCord and Henderson under a deed of assignment for the benefit of the plaintiffs and accepting creditors; that during the time of the pendency of the trust
and while McCord and Henderson were in possession of the property as assignees, a sale of the property in question was made by them to one C. W. Lawrence; that the purpose and object of the sale was that McCord should directly or indirectly become the purchaser of the property and acquire its title; that McCord did, within a short time after the sale to Lawrence, acquire by conveyance from Lawrence a title to the property; that such conveyance was made to McCord while the title to Lawrence was executory and in fieri; and also that McCord, prior to the sale, guarantied to Lawrence, as an inducement to the purchase by him, that he, McCord, would guaranty a purchaser of the property from Lawrence if the latter desired to sell; that such guaranty was made with the purpose and object of permitting McCord to acquire the property. Henderson is not charged to be a participant in the alleged fraud, but it is asserted that he merely negligently, and by want of attention to the administration of the trust, permitted McCord to bring about this state of affairs.
"These issues were submitted to the jury, and, as before said, the finding was against the contention of plaintiffs in error; and the evidence, except as otherwise stated in our findings of fact, justified the verdict of the jury.
"The property or its value sought to be recovered is described as follows: An undivided one-half interest in certain land notes of Preston Steele, secured by a vendor's lien on certain land out of the Samuel Jones league in Milam county; an undivided two-thirds interest in the W. B. Burton survey of land in Jefferson county; 242 shares of the paid-up capital stock of the Milam County Oil Mill Company, of the face value of $24,200.
"We find the following facts: W. F. & M. F. Crawford on the 6th day of March, 1896, executed to T. S. Henderson and A. P. McCord, as assignees, a general deed of assignment of all of their property for the benefit of their creditors, and that said Henderson and McCord immediately accepted and qualified as such assignees, and took possession of the property herein sued for, with the other property of the assignors. On the 5th day of May, 1897, the assignees sold to Lawrence the property in controversy. The sale was private and was made on credit, with lien on the property waived by the assignees. The consideration agreed to be paid by Lawrence for the property in controversy was $10,500. There is evidence to the effect that the price obtained was the fair value of the property; on the other hand, there is evidence tending to show that the property was worth more than Lawrence agreed to pay for it. Lawrence, at the time he purchased this property, also purchased from the assignees the remaining assets of the estate, upon which a lien was retained to secure the purchase money. This latter property, though, is not involved in this controversy. The evidence fails to disclose any satisfactory reason why a lien was not also retained upon the property in controversy to secure the purchase money promised to be paid by Lawrence. It appears from the facts that, while Lawrence desired to purchase some of the property not involved in this suit, he did not desire to purchase the property in controversy, and did not purchase the same until after the assignee McCord agreed to guaranty to find a purchaser at the price Lawrence agreed to pay for same, provided Lawrence wanted to sell. Upon the faith of this guaranty, Lawrence purchased the property in controversy. The guaranty was made by McCord to one Ralston, who was then acting for McCord, who communicated to Lawrence the terms proposed by McCord. Lawrence had no actual knowledge that McCord was the guarantor, but he supposed that the proposition came from him. At the time that Lawrence purchased he expected that the guarantor would have to comply with his contract of guaranty, and did, about the 20th of May, 1897, call upon McCord, the guarantor, to comply with the promise made, which promise was executed, not by McCord producing some one else as a purchaser, but he himself became the purchaser from Lawrence, who thereafter executed to McCord transfers to the property in question. The purchase price originally promised by Lawrence was never paid by him, but was paid by McCord when he acquired the title from Lawrence, and which was accounted for to the creditors of the assigned estate, and during all of this time McCord was still the assignee, burdened with some duties relative to the administration of the estate.
"We may...
