Young-Hall Company, a partnership doing business at Clarendon, Texas, becoming insolvent, made a transfer of the firm assets to Robert Sawyer for the purpose of securing the payment of the various debts mentioned in the preferential deed. Plaintiff in error, a creditor of the firm, not being of the preferred class, though included in the instrument, declined to accept its provisions and instituted this garnishment proceedings against the trustee.
The answer of the garnishee denied liability unless something should remain in his hands after paying off the preferred creditors, making a copy of the deed of trust an exhibit to his answer and alleging that all except plaintiff had accepted thereunder.
A controverting affidavit was filed, attacking the trust deed for fraud, and alleging the preferred debt therein secured to Alfred Rowe to be fictitious, but the alleged acceptance by said Rowe and others was not controverted.
The record contains the court's conclusions of law and fact, but no statement of facts. From these conclusions it appears that the issue of Rowe's acceptance was passed upon, though it does not otherwise appear to have been controverted. It is now insisted that the court's findings in effect show that he did not accept till after the garnishment was served, and that we should presume that this issue was made by oral pleading, and condemn the judgment affirming the validity of his acceptance.
The controverting affidavit tendered several issues both of law and fact and gave every indication of a carefully drawn pleading. It was met with a replication on the part of the garnishee. In this state of the record, nothing further appearing, it must be held that the issues so tendered and joined were the only issues made, and that of Rowe's acceptance, not being included therein, should be here ignored.
The remaining contention is that the deed of trust was fraudulent on its face as against non-accepting creditors, but we do not so read it. The features mainly relied on to sustain this contention were at most but badges of fraud. Baldwin v. Peet,22 Tex. 718, and cases *Page 520 there cited, as well as subsequent cases following that decision.
Judgment affirmed.
Affirmed.
ADDITIONAL CONCLUSIONS.