
    R. V. Allen v. P. J. Willis et al.
    (Case No. 1444.)
    1. Attachment.—An assignment made prior to the act of March 24,1879, regulating assignments, was found on special issues by the jury not to be fraudulent, and that the value of the property transferred by the assignment was largely in excess of the liabilities of the assignor. Held, that a judgment for costs against the assignee and in favor of an attaching creditor, who had obtained possession of goods largely in value in excess of his claim, was error, and that no other judgment could have been rendered on the findings than a judgment for the assignee.
    
      Appeal from Grayson. Tried below before the Hon. Joseph Bledsoe.
    On July 11, 1879, appellant filed this suit against appellees in the district court of Grayson count)'-, to recover the value of certain goods alleged to have been assigned to him by Wilson & Simpson for the benefit of their creditors, and taken from him by virtue of an attachment issued in a suit by P. J. Willis & Bro. against Wilson & Simpson after the execution of the deed of assignment. Defendants pleaded fraud in the assignment, and that since the levy of the attachment they had become the owners of'all the debts secured by the deed of assignment. The case was submitted to the jury entirely on special issues, and in response thereto the jury found as stated in the opinion.
    
      Woods, Wilkins & Cunningham and Hare & Head, for appellant.
    No briefs on file for appellees.
   Stayton, Associate Justice.

There is no statement of facts in the record, but there were special issues submitted to the jury and answered; and' it is claimed that upon the verdict the judgment entered should not have been rendered. This is the only question which we can consider.

From the special findings it appears: 1st. That the assignment made by Wilson & Simpson to the appellant for the benefit of their creditors was not fraudulent. 2d. That Wilson & Simpson were indebted to the appellees, P. J. Willis & Bro. 3d. That Wilson & Simpson were indebted to said appellees in the sum of $1,093.34. 4fch. That said appellees owned all the debts against Wilson & Simpson. 5th. That appellant, in addition to other property, received under the assignment in notes and book accounts, not exceeding $400. 6th. That.the fair market value of the goods which passed by the assignment to Allen, and were afterwards seized under the attachment sued out by appellees, P. J. Willis & Bro., against Wilson & Simpson, was $2,390, at the time and place of the seizure. 7th. That Allen, under the assignment in execution of the trust, had paid or incurred expenses amounting to $117. 8th. That Allen had received from the assets of Wilson & Simpson $150 by collection of notes and accounts, or sales of goods. 9th. The jury repeated their finding that the assignment to Allen was not fraudulent. 10th. That the attachment sued out by appellees against Wilson & Simpson was wrongfully sued out.

The jury having found that the assignment made by Wilson & Simpson to appellant was not fraudulent, it must be held that it was a valid assignment, and passed the title to the property to Allen for the purposes of the trust. Burrill on Assignments, 325. The title having so passed, it would follow that the property would not be subject to seizure under an attachment issued in a suit in which the appellees, J?. J". Willis & Bro., were plaintiffs, and Wilson & Simpson sole defendants. The very purpose of the assignment, as appears from the answer, was to secure the payment of the debt to appellees as well as others.

The assignment was made prior to the act of March 21, 1879, which regulates assignments, and hence not to be controlled by its provisions. If the trustee was an unsuitable person, or was in any way mismanaging the trust estate, he was subject to removal or to such control by a court of equity, in a proper proceeding, as might be necessary for the purpose of protecting those interested in the trust fund, among whom would be not only the creditors, but also the assignor; for he ivould be entitled to receive any balance remaining in the hands of the assignee after the payment of debts and costs of the trust.

The appellees set up in their answer an indebtedness to them by Wilson & Simpson of over $3,000, a sum exceeding the value of the goods seized under the attachment; but the verdict of the jury determines that they hold just claims against Wilson & Simpson, amounting to only $1,093.31; yet the court below only rendered a judgment in favor of the appellant for costs, when, according to the verdict, the appellees had seized, under the attachment, goods of the value of $2,390 at the time and place of seizure.

We do not perceive, if the assignment was valid, even if an attachment could have been legally levied upon the goods in the hands of the assignee, who, according to the answer, was holding for the benefit of the appellees as well as other creditors, and even if the appellees could plead in offset to the demand of the assignee the claims which they held against Wilson & Simpson, why judgment should not have been rendered against them for the value of the goods in excess of their claim; for they surely had no right to hold, in any event, more than was necessary to pay the debt due them.

The judgment, as rendered, leaves them with goods to the value of $1,296.66, to which, under the finding, the assignee would surely be entitled, and would hold for the benefit of other creditors or for the assignees, if all debts entitled to share in the trust fund were paid, together with the costs of executing the trust.

Whether the amount due to the appellees from Wilson & Simpson could be pleaded in offset to the demand of the assignee in any event, as the action stood, is doubtful; if so, it could only be done and allowed if it appeared that there were ample funds in the hands of the assignee to satisfy the claims of all persons who could claim under the assignment. From the verdict this cannot be known to be true; for the terms of the assignment are not before us. Whether made for the benefit of all the creditors of Wilson & Simpson as partners and as individuals we are not informed; what preferences may have been given by the assignment we cannot know; the jury find that the appellees hold all the claims against Wilson & Simpson, and that these amount to $1,093.34; but whether there be claims against Wilson & Simpson individually, secured by the assignment, and the amount of such claims, neither the verdict nor any other part of the record to which we can look gives any information.

Under the findings, no judgment other than one for the appellant could have been legally entered; but it is probably true that the case is not fully presented by the record before us, which seems to be defective in many respects, and we deem it more likely to sub-serve the ends of justice to reverse the judgment and remand the case, that the facts necessary to its- proper disposition may be exhibited, than to here enter the only judgment which the special findings would justify; and it is accordingly so ordered.

Reversed and remanded.

[Opinion delivered October 12, 1883.]  