Windham v. Patty & Mathews

Citations

• 62 Tex. 490
• 1884 Tex. LEXIS 276

Syllabus

<p>1. Deed of assignment — Attachment.—A deed of assignment made by insolvent debtors, which recited their inability to pay in full and a desire to convey all their property for the benefit of creditors, conveyed in terms “ all their lands, tenements, hereditaments, goods, property, and choses in action of every manner and description whatsoever, except such property as may be exempt by the constitution and laws of the state from forced sale.” On its face it contemplated three parties to it, viz.: the makers, the assignee, and the creditors, “who have executed or may hereafter execute or accede to its terms.” The deed closed with these words: “ And the parties of the third part (the creditors) express their consent to this arrangement and accept the provisions made for them.” It was only signed by the makers and the assignee. Held:</p> <p>(1) The creditors accepting the provisions of the deed might do so without signing it.</p> <p>(2) The deed conveyed all the property of the makers, whether partnership or individual, and was not void.</p> <p>(3) Even if one of the parties making the assignment was not a partner, and joined in the deed for the purpose of securing payment of his individual debts with funds belonging to the other assignor, it did not justify the creditors of the latter in a seizure of the goods under attachment.</p> <p>(4) The remedy of such creditors was in a proper distribution of the property assigned, under the assignment; enforced by an appeal to the equity jurisdiction of the court.</p> <p>(5) The failure of the assignee to give bond will not invalidate a deed of assignment properly made, or justify an attachment of the property transferred. The remedy of the creditors is to apply for the appointment of another to discharge the trust (act March 4, 1879, sec. 14),</p>