Citations
- 78 Tex. 251
Full opinion text
STAYTON, Chief Justice.
This action was brought originally by John T. Craig, who sued as assignee under an assignment for the benefit of creditors made by C. W. Israel & Co., but the assignment under which he claimed having been adjudged invalid he subsequently took a nonsuit.
The action was brought against J. W. and R. D. Welborne on a note which they had executed to 0. W. Israel & Co., of date October 1, 1885, for 81606.06.
On January 4, 1884, one A. C. Jacobs made an assignment under the Statute for the benefit of his creditors, in which G. A. Archibald was made assignee.
That estate owned a house and lot, and on June 10, 1885, that was sold by Archibald to J. W. "Welborne for the sum of $3000, one-half of which "was paid in cash and for the balance Welborne executed a note to Archibald maturing on or before August 1, 1885, the latter executing to Welborne a bond for title.
' The evidence shows that about June 15,1885, Welborne executed a note to Israel & Co. for about $1545, which it is claimed by the defendants Welborne was executed for money borrowed by J. W. Welborne from Israel & Co., who were hankers, with which it is claimed that the note executed to Archibald was paid.
In renewal of the note last, named the note sued on in this case was executed.
'■ Archibald resigned his position as assignee of Jacobs’ estate and John-T. Conn was appointed in his stead, but he having resigned, appellant Slaton was appointed assignee and duly qualified.
Before Craig took a nonsuit Conn intervened in the case as assignee of Jacobs’ estate, and on his resignation the intervention was continued by Slaton.
The pleadings in intervention in effect assert that the note sued upon equitably belongs to the estate of Jacobs, and asserts that the second note executed by J. W. Welborne to C. W. Israel & Co. was not given for money borrowed with which the note for balance of purchase money executed to Archibald was paid, but that the same was'executed without any consideration running from Israel & Co. for the fraudulent purpose of giving the transaction the semblance of a loan, when the real transaction was the execution of that note on no other consideration than the surrender by Archibald of the note first executed to him to secure a part of the purchase money for the house and lot sold to Welborne.
1 If that was the base, as,between Israel & Co., J. W. Welborne, and the estate of Jacobs there can be no doubt that the equitable right to that note or its proceeds was in the estate of Jacobs, and his assignee might have enforced it.
If such was the sole consideration for that note the right to the note now sued on or the sum evidenced to be due on it, it having been given as is conceded in renewal of the second note, is in appellant Slaton, and the fact that it was signed by R. B. Welborne as well as by J. W. Welborne is a matter of no importance.
The evidence shows that Archibald was assignee of Jacobs’ estate and that he was and long before had been the cashier and practical manager of the bank of C. W. Israel & Co. when all those transactions occurred.
The evidence further shows that he made a deed to J. W. Welborne for the house and lot on June 15, 1885.
There is no evidence whatever which shows that the bank of Israel &