Donley & Anderson v. W. H. Cundiff, Administrator, etc., 35 Tex. 741

Ogden, J. This suit was originally instituted by the appellee in the County Court of Houston county, against the appellants, to recover certain notes which appellee’s intestate had, during his lifetime, transferred and assigned to appellants for a specified purpose. A •decree was entered in the county court in favor of appellee, and the appellants appealed to the district ■court.

In the district court, both plaintiff and defendants amended their pleadings, and the cause was submitted to a jury upon several special issues ; and upon the verdict of the jury, judgment was entered up for the plaintiff below, and the defendants have appealed to this court. We do not deem it necessary to notice the many questions raised in the court below, nor the ■several supposed errors set out in the assignment in this court, as most of them are believed to be wholly irrelevant to the true issue in this cause.

There is, however, one question raised in the lower courts, and contended for with much zeal in this court, which, under the laws in force at the institution of this suit, was of the first degree of importance to the interest of estates of deceased persons. The petition or complaint originally filed in the county court presented a ■case fully authorizing the county court, under

Article 1380, Paschal’s Digest, to take cognizance of the matter. There can be no doubt that under that clause of the statute, where the administrator made complaint in writing that any person had papers belonging to the ■estate he represented, and refuses to give them up on demand, it was the duty of the court to take cognizance of the matter ; and it made no difference how that person became possessed of the papers, or what those papers were, so that they belong to the estate and were valuable to it.

We are, therefore, of the opinion that the county court very properly took cognizance of the original complaint, filed in this cause. And, therefore, if the administrator established the fact that the notes set out in his complaint were the property of the estate of Jesse Duren, and that the appellants in this court had refused to surrender the same on demand, then the judgment of that court was correct and should have been sustained. And as the cause was appealed to the district court, the same rules of law should have determined the decree in that court.

The only question, then, which should have been determined in the county and district courts, was, did the notes described in the administrator’s complaint legally belong to the estate of Jesse Duren ?

It appears by the receipt of appellants, which was made a part of the amended petition in the district-court, and which is the foundation of this action, that in 1861 Jesse Duren transferred, by his indorsement in blank, a large number of promissory notes to appellants, for the payment and satisfaction of certain judgments, which the appellants, as the agents and attorneys of other parties, had obtained against the said Jesse Duren in the district court of that county.

This transfer, by the indorsement in blank and delivery of the notes, and by the express terms of the receipt, was absolute; and the indorser thereby lost all control or legal property in the same, and the appellants thereby became the trustees of Duren’s judgment creditors. They accepted the trust, and agreed to collect the notes so transferred with due diligence, and to pay the money, when collected, to the judgment creditors, as specified in the receipts.

This was to all intents and purposes a complete assignment to trustees for the benefit of certain specified creditors; and by indorsing the notes, Duren himself became liable to be sued by the trustees upon the notes thus assigned; and instead of reserving any interest in or rights over the same, he might, if still living, have been compelled to pay the entire amounts of the notes and interest to the trustees, for the benefit-of his creditors; and even his administrator is now liable-to be sued on these notes in the hands of the trustees. 'The assignment or transfer having been for a valuable ■consideration and absolute, the assignor lost all property in the notes, and could not, if living, have recovered them again from the assignee.

It is true that he still had an equitable interest in the money when collected, ■or rather in having the same paid over to his judgment creditors, in order to the cancellation of his obligations to them; and had the assignees or trustees failed to perform the dutie's of their trust in any particular, they might have been held responsible by the assignor or his representative, or by the creditors for whose benefit the .assignment was made.

That an assignment of this ■character is irrevocable and absolute, and passes all property in the thing assigned, we think the authorities are quite uniform. (1 Parsons on Contracts, 226-230; Story’s Eq. Jurs., 1039-1040; McMenomy v. Ferrers, 3 Johns., 72; Caufield v. Monger, 12 Johns., 346; Taylor v. Bates, 5 Cowen, 377; Mcolet’s Administrator v. Pillot, 24 Wend., 240.) Mr. Parsons says, that where the assignment passes the property to the assignee, the death of the assignor will not defeat the assignment.

We are, therefore, of -the opinion that the transfer or assignment by Jesse Duren to appellants passed the property in the notes assigned absolutely and irrevocably, and that the death ■of the assignor did not defeat the assignment. And if .not, then the administrator could not maintain his suit ;for the notes so transferred and assigned; and that, •therefore, the court erred in overruling the exceptions .of the defendants to the petition of plaintiff, as that Aid not set out a good cause of action.

It may be proper to remark, that while the administrator cannot, under the receipt set out in his petition, ^maintain a suit for the possession of the notes, yet he has a right to see that the assignees perform their whole duty as trustees; and should they fail to use diligence in the collection of the notes, or fail to pay over the money, when collected, to the creditors for whose benefit the assignment was made, and thereby cancel the liability of the estate he represents, then they may be liable in damages or otherwise to the estate, or to the creditors of the estate.

For the erroneous ruling of the court, the judgment is reversed and the cause dismissed. Reversed and dismissed.