Tackaberry v. City Nat. Bank

• Decision Date: 06 April 1893
• Citation: 22 S.W. 151
• Parties: TACKABERRY v. CITY NAT. BANK OF FT. WORTH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

22 S.W. 151

TACKABERRY v. CITY NAT. BANK OF FT. WORTH.¹

Supreme Court of Texas.

April 6, 1893.

Error to court of civil appeals of second supreme judicial district.

Action by Mary A. Tackaberry against the City National Bank of Ft. Worth to set aside assignee's deed. A judgment for defendant was affirmed by the court of civil appeals, (22 S. W. Rep. 121,) and plaintiff brings error. Affirmed.

Heyde Jennings and W. L. Husbands, for plaintiff in error. Ball, Tempel & Ball, for defendant in error.

STAYTON, C. J.

Plaintiff in error made a general assignment as an insolvent debtor for the benefit of all her creditors, in accordance with the statute regulating that subject, and defendant in error claims the lots in controversy through purchase from the assignee. She was the head of a family prior to and at the time the assignment was made, and had been for some time engaged in a mercantile and manufacturing business, conducted on the lots in controversy, which were protected from forced sale by reason of the purpose for which they were used. She also owned a home in which, with her family, she resided, but this was not contiguous to the property in controversy. The deed of assignment, without describing it, purported to convey all the property owned by her, "except such property as is exempt by law from levy and sale under execution;" and to it was attached a statement giving the names of her creditors, and the sum due to each, as well as an inventory of her property, which embraced the lots in controversy, particularly described, as well as some other real property, but it did not embrace the property on which she and family resided. The heading to the paper last named was as follows: "Inventory of Property Assigned by Mary A. Tackaberry," and to it was attached her affidavit, stating that "the foregoing inventory or schedule is in all respects just and true, according to the best of my knowledge and belief." This action was brought by plaintiff in error to recover the property on the ground that title thereto did not pass to the assignee, because excepted from the assignment. The cause was tried without a jury, and a judgment rendered for defendant, but, as no conclusions of fact and law were filed, we have no means for ascertaining on what ground the judgment was based; but the court of civil appeals held that these papers were to be read together, and evidenced an intention to convey all property not exempt from forced sale, and also to convey the property in controversy, even though it was exempt property, and would not have passed but for effect given to the schedule. The deed of assignment does not refer to the schedule for description of the property intended to be conveyed by the general description given, and the schedule was evidently made to comply with the statute, which requires a schedule of all the assignor's property, whether exempt or not. Sayles' Civil St art. 65b. To guard against misconception that might arise from compliance with this requirement, it is provided in the seventh paragraph of the section referred to that "nothing contained in this act shall affect the assignor's right to retain all such of his property as is by the constitution and laws of this state exempt from execution." The purpose of the schedule is manifest, and the heading, which was evidently made for the purpose of identifying it, ought not to be given effect as a conveyance; and especially so if repugnant to the clause in the deed declaring the intention to convey, and determining in general terms what was intended should pass under the conveyance. That it was not intended property exempt from forced sale should pass is made clear by the deed, and, if this was the character of the property in controversy when the deed was delivered, then the exception contained in it must be given effect, as fully as though the excepting clause in the deed had minutely described the property excepted from its operation. The schedule cannot extend the operation of the deed beyond the intent manifested by it; but if there was uncertainty as to the property intended to be conveyed a schedule referred to for description would be as effective for the purpose of identification as would be a description given in the face of the deed. As held in Keating v. Vaughn, 61 Tex. 518, the schedule referred to or required to be made may be looked to for some purposes in construing a deed, but it cannot be looked to and made to operate as a conveyance of property which the deed expressly provides shall be excepted from its operation.

The case before us is a much stronger case than was the case of Ex parte Jardine, L. R. 10 Ch. App. 322, which well illustrates the rule as to the effect to be given to a schedule. In that case it appeared that the makers of the deed, in terms, by it conveyed all the working plant owned and used by them as iron founders, which was described in the deed with some minuteness; but reference was therein made to a schedule, executed at the same time, for a more particular enumeration of the things intended to be conveyed. The deed upon its face showed no intention to convey the stock in trade owned by its makers, but did provide that the schedule should be "read and construed as forming part of these presents." The heading to the schedule stated somewhat in detail the general classes of property embraced in its enumeration, and showed the purpose for which it was made, and in this was made a general statement of property that would embrace the...