Watterman, Star & Co. v. Silberberg

Citations

• 67 Tex. 100
• 2 S.W. 578
• 1886 Tex. LEXIS 622

Syllabus

<p>1. Mortgage—Statutes Construed—Assignments.—The seventeenth section of the assignment law regulating general assignments recognizes the fact that mortgages, deeds of trust and other forms of lien given by a debtor will be valid notwithstanding the existence of the assignment law, if under the general rules applicable to such instruments they are not, in legal contemplation, fraudulent.</p> <p>2. Same—Preference to Creditors.—That the effect of such instruments is to give preferences to one or more creditors over others has never been held to make them fraudulent, unless under the provisions of a bankrupt or similar law they are to be so held.</p> <p>3. Statutes Construed—Fraudulent Conveyances.—The Act of March 24,1879, regulating assignments, did not repeal the Act concerning fraudulent conveyances; and instruments giving preferences to particular creditors, which are not general assignments, are not invalid unless made under such circumstances as would invalidate them under the statutes concerning fraudulent conveyances.</p> <p>4. Mortgages.—An instrument which from its terms shows that it was intended as security for a debt, or debts, is to be deemed a mortgage, or in the nature of a mortgage, although it may give power to a creditor, or even to a third person, to sell the thing mortgaged, and to apply the proceeds to the debt or debts secured.</p> <p>5. Same.—When the leading object of the instrument is to give security to a creditor or creditors, the debtor making it will have the right at any time before the property is sold to avoid it and reclaim the property by paying the debts. Even when such a mortgage is construed to pass the legal title, a condition of defeasance will be implied if not expressed.</p> <p>6. Mortgage.—A conveyance of personal property made by a creditor to a debtor, with power to sell the property and pay the debt, with a reservation to the creditor of such portion of the property as may not be required to pay the debt, is a mortgage.