Hudson v. P. J. Willis & Bro.

Citations

• 65 Tex. 694
• 1886 Tex. LEXIS 730

Syllabus

<p>1. Assignment—Act of March 24,1879—Creditors — Acceptance — Obligation — Fraudulent transfer—Suit was brought to recover damages for the wrongful and malicious seizure of a stock of goods. Plaintiff alleged that he was a merchant, owning and possessing the goods; that they were seized under an execution against a firm of which he was not a member; that the firm had no interest in the goods; and that defendants had accepted an assignment of the firm, received a dividend thereunder, and released the judgment before the execution issued. The answer was a general denial, also a special denial of plaintiff’s ownership and possession, and a plea denying the acceptance of any dividend under the assignment, and setting up that the receipt to the assignee was without consideration, the dividend having been received by K. & R., creditors of defendants, and credited to them by defendants. Plaintiff demurred to this plea as setting up no defense—Held: ''</p> <p>(1) That the natural construction of the statute of March 24,1879, would be, that an acceptance of the assignment and the agreement to release the assignor, by a creditor, would discharge the debtor from all further liability to such consenting creditor, whether the receipt and release were executed by the creditor or not;</p> <p>(2) The assignment passes the property beyond the control of the assignor; thenceforth the assignee is liable for its mismanagement. (Secs. 6 and 14, R. S., app. p. 6.)</p> <p>(3) After accepting an assignment, a creditor certainly cannot sue the assignor, pending the administration of the assets by the assignee, upon the same debt, or enforce it, if a judgment, by the levy of an execution; this would be in direct contravention of the letter and spirit of the law;</p> <p>(4) Under the law of 1879, the amount of the dividends declared could not affect the question, and if the destruction of the property or its diminution in value prevented the payment of any dividend, the creditor was still bo