Fant v. Elsbury

Citations

• 68 Tex. 1
• 2 S.W. 866
• 1887 Tex. LEXIS 635

Syllabus

<p>1. Assignment fob the Benefit of Creditors.—Every instrument, purporting to be a general assignment for the benefit of creditors, is governed as to its force and effect, the validity of its provisions, and the manner in which the trust created is to be administered, by the statute regulating assignments for the benefit of creditors. When the deed making such a general assignment is executed, the assignee becomes the officer of the law to administer the trust in obedience to the statute, regardless of any direction in the deed violative of its provisions.</p> <p>2. Same.—Such an instrument, which embraces two lists of the assignor’s creditors, in which all creditors are included, containing a general description of all the debtor’s property, and which provides for a more specific inventory to be afterwards made, creates a statutory and not a common law assignment. The failure to swear to the schedules, by whatever motive influenced, can not change .the legal character of the instrument; nor will the failure of the assignee to give bond, or of the assignor to require one, remove the assignment from the operation and control of the statute.</p> <p>3. Same.—Though a clause in a deed of general assignment which attempts to give a preference in favor of particular creditors in the distribution of the property conveyed, is violative of the eighteenth section of the act regulating assignments, and is void, it does not invalidate the assignment. A general assignment for the benefit of all creditors being once made, the law, and not the wishes of the assignor, must govern in the distribution of the assets.</p> <p>4. Same—Bond of Assignee.—When a deed of general assignment is executed, the title to the property conveyed vests in the assignee, for the purposes of the trust, under the directions of the statute. . Should the assignee fail to execute the bond required by the law, creditors who do not complain and seek the appointment of another, in the manner designated by the