The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-04-04

Ditman VS.. Weiss Brothers, certlneu
question from the court of civil appears
for the First district. .1,
II. Amthor, on the 18th day OF Decenl-
Der, 1887, made a deed of assignment lor
the benefit of such of his creditors as
should agree to accept their prGportieona aI
share of his estate, and release him from IRON
further liability. On December q, 1881,
fine assignor conveyed a large portion Oh
his estate to c. A. Ditman, and on the
10Th of the same month conveyed 10 hm
another large portion of the estate. Z,
The plaintiffs below were accepted
creditors of Amthor, under. the deed
aforesaid. After a refusal OF the asslgHee
10 she. they brought this suit against DIt-
man TO subject the property transferred 10
him by Amthor to the payment OF tne
debts pro rata of all the accepting creul-
TORS. Fraud in the transfer from Am
thor to Ditman was alleged. 1t was also
alleged that, if Amthor was indebted III
any amount to Ditman, the properly was
more than enough to pay the same ...,
i'' 0nestionN"Are the plaintiffs in this
action restricted to the remedy gwen
them under the statute authorizing and
rprulating assignments by insolvents, OF
NAV they pursue the remedy gwen lnenl
nv that statute in conjunction WIN lllaI
piyen by the statute of frauds
T1irst-One who claims property, when
has been conveyed in fraud OF creditors
NV n title derived from the grantor SUI
sSouent to the fraudulent conveyance can
NOT maintain an action to set II aSlue
nnder this rule, we have held that the au-
ministrator of the estate of deceased per
son can not recover property 1r2uueapIdISS
conveyed by his intestate. VI 1cN. QUO
and cases there cited) ,, /, .ho
1t is also held, as we think by tne
weight of authority, that the asslsnte
of an insolvent debtor cannot m annLarl
an action to set aside fraudulent convey
ances made by his assignor before the as
sirnment, The opinion of this court, III
az Tex. $40, seems to have been that the
statute of this State concerning assign
mems did not confer the right upon the
assignee to maintain suit for property
previously conveyed by the assignor with
fraudulent intent. We are of the, opln-
ion that this conclusion is correct, though
il was unnecessary to the decision Oh the
case cited. The only provision OF the act
of March ., 1879, in relation to assign
ments, which bears directly upon TINS
nnestion is contained in the 9th section
This section only applies in express terms
TO conyeyances made in contemplation OF
an assignment, and it excludes the idea
that other fraudulent cOnveaynces were
intended to be embraced within its pro-
visions.
A fraudulent conveyance is valid as
between the grantee and grantor. Ihougnl
void as to creditors, they cannot AVOID
it except through legal proceedings. UO
Tex, 1922 The grantor and those act
ing in his behalf cannot do so.
1t was certainly the intention OF lhe
legislature to enable fraudulent grantol
to deprive his creditors of the right &c
subject to the payment of their depts
property previously conveyed In irauu OF
their rights The act was lntendeC
rather to enhance the rights OF creditors
in general, and to effect a prompt anC
equitable distribution of all the assignor
assets.
That creditors may bring suit to SUB
ject property, fraudulenty conveyed D!
the debtor, to the payment of their debt'
without having first acquired a lien there
on is the settled law of this State. "
Tex, 527; rs Tex, 131) There IS noth
ing in the assignment law to proven
the application Of this rule to the presen
suit.
We conclude that the first section 0
the question set out above should b
answered in the negative. Opinion o.
Gaines, G. ].