Lovenberg v. National Bank

Citations

• 67 Tex. 440
• 2 S.W. 874
• 1887 Tex. LEXIS 903

Syllabus

<p>i. Assignor and Assignee—Assignment fob Benefit of Creditors— Statute Construed.—A bank, as creditor of an insolvent debtor, received an instrument in the nature of a chattel mor tgvi ge, made in violation of law, to secure its claim, and took forcible possession irom an assignee, of goods transferred to him by the debtor by legal assignment for the benefit of creditors, but made after the chattel mortgage. The chattel mortgage having been decided by the supreme court to be in contravention of law regulating assignments, the bank thereupon filed with the assignee proof of its claim, but about eighteen months after the notice given by the assignee, who refused to accept it. The claim of the bank was twice the value of the assigned property. Held:</p> <p>(1) Without deciding whether, under, all circumstances, it is necessary for a creditor of an assignor to file a claim against him within six months after the publication of notice by the assignee, to entitle him to the benefit of an assignment, in this ease the failure to do so was without excuse.</p> <p>(3) The statute does not contemplate that the pendency of a suit by a creditor, which from its very nature, must leave a large portion of a creditor’s claim due from the a=signee, shall excuse him for awaiting the action of the courts indefinitely before proving up any portion of his claim.</p> <p>(3) Though circumstances may surround a claim against an insolvent debtor who has assigned, making the precise sum due difficult of ascertainment, the law does not contemplate that a creditor shall stand excused for that cause, who fails to file his claim with the assignee within the time required by the assignment laws.</p> <p>(4) If the bank was in possession of doubtful security, afforded by an instrument executed to it by the insolvent, and the construction of which was involved in litigation during the period within which the claim should have been filed, it could state that fact, and any other fact rendering the amo