McIlhenny Co. v. Craddock

4 S.W. 616, 68 Tex. 359, 1887 Tex. LEXIS 697

• Court: Texas Supreme Court
• Decided: May 27, 1887
• Docket: No. 5928
• Status: Published

Opinion

Stayton, Associate Justice.

It is urged that the court erred in admitting in evidence the deed of assignment. The grounds of objection relate not to the manner of its execution, but to the effect of the instrument itself. The instrument was made for the benefit of all the creditors of the assignor, who would consent to take under it; in connection with the schedule, which is a part of it, it professes to pass all the property owned by the assignor, except such as was exempt from forced sale; it appointed and conveyed to a qualified assignee, and by fair construction evidenced the intention of its maker to make an assignment under the act of March 24, 1879, and the amendments thereto.

This, we think, constituted a valid assignment under the statute, and if the instrument was wanting in any respect in the fullness required by the statute, it was in relation to matters which, the statute declares, shall not invalidate an assignment. The assignee had qualified and was in possession when the appellants caused the property illegally to be seized.

It is urged that the assignment was void because it stipulated for releases by such creditors as might consent to take under it, and does not make the right to such releases dependent upon the receipt by accepting creditors of one-third of the amount due them. It was not necessary that the deed of assignment should have contained such a provision, for that is regulated by the law itself. If a creditor under such an assignment consents to take and receives less than one-third of the amount due to him, he is finder no obligation to execute a release.

There is no error in the judgment, and it will be affirmed.

Affirmed.