Cullers & Henry v. Kennedy

1 White & W. 78

• Court: Court of Appeals of Texas
• Decided: April 26, 1882
• Docket: No. 2268, R. Book No. 4, p. 4
• Status: Published

Opinion

Opinion by

Winkler, J.

§ 198. Insolvent act of 1879; construction of, as to right of debtor to prefer creditors. Since the adoption of the insolvent act of 1879, an assignment for the benefit of creditors, though not made in conformity with the terms and provisions of said act, and in which certain creditors are preferred, even though said preferment is made in good faith, is in direct conflict with said act, and cannot be upheld. [Appendix to Rev. Stats, p. 5.]

§ 199. Assignment; preferred creditors; attachment. An assignment for the benefit of creditors, made since the insolvent act of 1879 was adopted [Appendix to Rev. Stats, p. 5], which seeks to prefer certain creditors over others, and to exclude others entirely from the benefits or any participation in the proceeds arising from the sale of the property assigned, renders the pretended assignment fraudulent and without effect, and it cannot be invoked to place the property of the assignment out of the reach of an attaching creditor.

April 26, 1882.

Reversed and remanded.

N. B. A contrary doctrine to that laid down in this case is held by the supreme court in La Belle Wagon Works v. Ludbill, Van Sant & Co. Austin Term, 1883, and by this court in Brown & Co. v. East Texas Fire Insurance Co., supra, p. 204, and in Schneider & Davis v. Bullard [Comm’rs App.], post, p. 676, § 1185 et seq.