Rainwater-Boogher Hat Co. v. Weaver

• Decision Date: 04 September 1893
• Citation: 23 S.W. 914
• Parties: RAINWATER-BOOGHER HAT CO. et al. v. WEAVER.
• Court: Texas Court of Appeals

23 S.W. 914

RAINWATER-BOOGHER HAT CO. et al. v. WEAVER.

Court of Civil Appeals of Texas.

September 4, 1893.

Appeal from district court, Red River county; E. D. McClellan, Judge.

Controversy submitted without action between the Rainwater-Boogher Hat Company and another against John H. Weaver to determine the validity of a conveyance made by defendant. From a judgment finding the conveyance valid, plaintiffs appeal. Affirmed.

Dudley & Moore, for appellants. M. L. Sims and H. D. McDonald, for appellee.

FINLEY, J.

This is an agreed case under article 1414 of the Revised Statutes, and the question presented for decision is as to the validity of a conveyance, commonly called "deed of trust," executed by Steinlien & Co. to John H. Weaver, trustee, for the benefit of certain creditors. It is admitted that, at the time the instrument was executed, Steinlien & Co. were largely indebted and insolvent, and that all their property was covered by the conveyance. It is contended by appellants that the instrument contains certain provisions which render it void upon its face. One of the provisions complained of is as follows: "The said John H. Weaver to take immediate possession and control of the said property, and, after an inventory thereof shall have been taken, the said Weaver is to proceed to sell said property for cash, and reduce into money the choses of action and all evidences of debt hereby conveyed and turned over to him; the goods to be sold at retail or in such other manner as will realize the largest amount of money, and the proceeds received from both sales and collections to be deposited daily with the Red River County Bank, subject to be distributed as hereinafter directed; and, after the stock shall have been so reduced that it will not justify selling at retail, the said Weaver is hereby authorized and empowered to sell the remainder of the goods on hand, either in bulk or in lots, at public auction, for cash, to the highest bidder." It is asserted by appellants that this provision directs the trustee to sell the goods at retail in the regular course of business, and, in effect, prohibits an immediate sale, and contemplates the carrying on of a retail merchandise business for an indefinite period of time; and therefore, by its terms, it hinders and delays appellants (creditors) in the collection of their debts, and that the conveyance is thereby rendered void. We think the construction of the provision contended for is reasonable and correct, but does the legal consequence claimed by appellants necessarily follow? Appellants were not included among the fortunate creditors for whose benefit the conveyance was made, and it does not appear from the instrument itself or otherwise that the property conveyed exceeded in value the amount of the debts intended to be satisfied out of the proceeds from the sale of the property. It does not appear that any of the debts attempted to be secured by the conveyance were fictitious or invalid for any reason, and the only facts presented for consideration in connection with the recitals in the instrument which it is insisted tend to support the proposition that the instrument is void are that Steinlien & Co. were insolvent, and that all their...