McIlhenny Co. v. Miller , 68 Tex. 356 ( 1887 )

Stayton, Associate Justice.

The assignment in this case, from the provisions contained in the deed through which it was-made, was intended to be in compliance with the act of March 24, 1879, and the amendments thereto, and, while it does not in terms declare that the property enumerated in it is all that the assignor owned at the time, except such as was exempt from forced sale, yet, loooking to the whole instrument, we are of the opinion that it must be considered a statutory assignment.

There is nothing which restricts its operation upon all the property owned by the assignor, and being intended as a statutory assignment, by operation of the statute, it passed all of the assignor’s property subject to forced sale.

The statute provides: “That every assignment made by an insolvent debtor, or in contemplation of' insolvency for the benefit of his creditors, shall provide, except as herein otherwise provided, for a distribution of all his real and personal estate other than that which is by law exempt from execution, among all his creditors in proportion to their respective claims, and, however made or expressed, shall have the effect aforesaid, and shall be construed to pass all such estate whether specified therein or not.”

No question is made as to the insolvency of the assignor, and that he made an assignment for the benefit of his creditors can not be denied. The object of the statute, when such an assignment is made, is to compel a distribution of the proceeds of all the assignee’s estate, real and personal, subject to the payment of debts, among his creditors under its provisions; and the express provision that such an assignment “shall be construed to pass all such estate, whether specified therein or not,” must be given the effect which its terms require.

Opinion delivered May 27, 1887.

It was held in Donoho v. Fish Bros. (58 Texas, 167), that an assignment made by partners which only purported to carry the partnership property, and was otherwise restrictive upon its face, could not be aided by the statute and thus made to pass title to the real and personal property owned in separate right by each of the partners; for this would be to make a contract which the parties never intended to make. When, however, an instrument, on its face, shows an intention to make an assignment under the statute, if there is nothing in it, save the fact that the assignor, after enumerating property conveyed, does not state that this is all of his property subject to the payment of debts, from which an inference may be drawn that he intended to make only a partial assignment, then he will be presumed to have intended to convey what the statute declares his conveyance shall be construed to pass; and thus will the law aid the imperfect instrument.

The court below did not err in admitting in evidence the deed of assignment.

The law fixes the proportion of debts which must be paid before the insolvent can become entitled to a release, and it is not necessary that this be stipulated in the deed of assignment.

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

Affirmed.