Blum v. Wettermark

Citations

• 56 Tex. 80
• 1881 Tex. LEXIS 171

Syllabus

<p>1. Action—Statute construed.—The fact that six months has not expired after the date of publication of notice of the appointment of an assignee, under the provisions of the law regulating assignments for the benefit of creditors, approved May 34, 1879, can furnish no defense to an action brought against the assignee for 'the purpose of protecting and securing the estate for ultimate distribution.</p> <p>2. Same.— If at any time after executing bond an assignee under said act misapplies assets confided to his care for the benefit of creditors, whether through negligence or fraud, the creditors may maintain an action against him to preserve the trust estate. In such case it is immaterial whether the assets misapplied were scheduled in the assignment or not, if the property belonged to the assignor, and was received by the assignee as a part of his estate.</p> <p>3. Same — Statutes construed.— It is not necessary that such action should be brought in the name of the assignee, under the ninth section of the act, but it may be brought by any of the creditors in their own names for the benefit of all.</p> <p>4. Pleading.— In a petition filed by creditors against an ássignee appointed under the act of March 34, 1879, for misapplying the assets received by him, there was no distinct averment that there did not remain in the hands of the assignee assets not misapplied, sufficient to discharge the debts. On general demurrer, held, ■</p> <p>(1) That the omission was not fatal.</p> <p>(2) The statute having been made for the. benefit of insolvent debtors and their creditors, no presumption can arise that a debtor who avails himself of its provisions is solvent.</p> <p>(3) Conclusion against the demurrer reached in a case where the property misapplied was alleged to be of a value equal to two-thirds of the indebtedness of the assignor.</p> <p>5. JURISDiCTiON.— The district court, under its general equity powers, has, in a suit brought against an assignee for the benefit of cr