Puckett v. Richardson Drug Co.

• Decision Date: 20 December 1892
• Citation: 20 S.W. 1127
• Parties: PUCKETT v. RICHARDSON DRUG CO., (GREER, Intervener.)
• Court: Texas Court of Appeals

Page 1127

20 S.W. 1127

PUCKETT v. RICHARDSON DRUG CO., (GREER, Intervener.)

Court of Civil Appeals of Texas.

December 20, 1892.

Appeal from district court, Hill county; J. M. HALL, Judge.

Attachment suit by the Richardson Drug Company against E. G. Puckett. R. M. Greer intervened, claiming the attached goods under a deed of trust from defendant. There was a judgment for plaintiff, and the intervener appeals. Reversed.

McKinnon & Carlton, for appellant. B. D. Tarlton and W. C. Morrow, for appellee.

HEAD, J.

It seems that on the 23d day of July, 1888, E. G. Puckett executed a deed of trust on a stock of drugs to appellant, as trustee, to secure a debt due by him to Behrens & Castles, of Waco, Tex., amounting to the sum of $312.83, with interest from July 21, 1888, at 12 per cent. per annum. By the terms of said deed in trust the trustee was empowered to "at once take sole and exclusive charge and possession of said property, to the exclusion of the mortgagor and all other persons, and the same sell for cash with all reasonable dispatch at the usual selling market price thereof;" and the proceeds were to be applied — First, to the payment of a reasonable compensation to himself for his services in conducting said sale at the rate of $25 per month; secondly, to the payment and discharge of all accrued and accruing rents of the storehouse in which said goods were situated, or might thereafter be situated; thirdly, to the payment of the debt to Behrens & Castles; and, as soon as all of said indebtedness was paid off, such deed of trust, and all therein contained, was to become null and void, but if, within six months from the date thereof, said trustee had not, in the manner aforesaid, fully paid off and discharged said indebtedness, then said trustee should advertise all of said property for ten days by posting three written notices of sale at three public places in Hill county, Tex., and sell the same at the courthouse door in Whitney, where said goods were then situated, at public vendue to the highest bidder for cash, and with the proceeds of sale pay such indebtedness in the order above named; and it was further stipulated that the residue, if any, should be paid over to the mortgagor, or his heirs and assigns. On the 10th day of August, 1888, and before the debt to Behrens & Castles had been satisfied, appellee sued out in the county court of Hill county a writ of attachment against Puckett for the sum of $279.80, and had the same levied upon the stock of drugs conveyed to appellant as aforesaid. Appellant filed his claim bond, and this suit is for the trial of the rights of property thereon. The issues tendered raised the question as to the validity of said deed in trust, plaintiff alleging that it had been made in fraud of the creditors of Puckett. On the trial of the case in the court below the claimant offered in evidence the deed in trust from Puckett to him, to which plaintiff objected, for the reason that "it showed on its face that it was void as to creditors, insomuch as it directed the trustee, Greer, to pay to the mortgagor all of the proceeds of the sale of the goods left in his hands after the satisfaction of the claims set out in said trust deed." In the bill of exceptions it is recited that "the court sustained the objection of plaintiff without evidence, subject, however, to a determination of the issue of the solvency or insolvency of E. G. Puckett at the time of the making of the trust deed; holding that, in case the evidence showed that E. G. Puckett was solvent at said time, the instrument would be admitted, otherwise it would be excluded; and further holding the burden of proof was upon the defendant to show the solvency of said Puckett at said time." It may be added here that the deed in trust contained no recital as to the solvency or insolvency of Puckett.

Appellant's first assignment of error calls in question the correctness of the ruling of the court upon the introduction of the deed in trust as above set forth, and we are of opinion that the specific objection made to the introduction of this deed, as shown by the bill of exceptions, was not well taken. It will be noticed that the only objection made to the deed was that it provided for the return of the surplus, after satisfying the debts it was made to secure, to the mortgagor; and this, we think, was entirely proper, and is the distinguishing feature between such an instrument and an assignment. If it was only intended that this instrument should have the effect of a mortgage, the provision complained of was proper, whether Puckett was solvent or insolvent. Johnson v. Robinson, 68 Tex. 399, 4 S. W. Rep. 625. The propositions presented by appellant, however, under this assignment, seem to raise the question as to the validity of...