The instrument through which Hill, Fontaine & Co. claim to have acquired rights does not bear on its face any evidence whatever that it was intended to operate as an assignment for the benefit of creditors under the act of March 24, 1879.
On the contrary, it purports to be just what it is, a mortgage with power to sell given to secure a debt which its' makers, Bogers & Atkinson, owed to the appellees, and it carried with it all the incidents of such a mortgage, whether expressed or not.
In La Belle Wagon Works v. Tidball, Van Zandt & Co., 59 Tex., 292, it was held that the act of March 24, 1879, in no manner interfered with the long recognized right of a debtor to give preferences to one or more creditors; and that the sole prohibition to the giving of such preferences contained in that act related to preferences attempted to be given in assignments made under its provisions; and we see no reason to doubt the correctness of the conclusion reached in that cause.
There is nothing on the face of the mortgage which would have authorized the court below to hold it void.
That the instrument contained a provision that the residue of the property mortgaged, remaining after a sufficiency thereof had been sold to pay the debt due to appellees, and the necessary costs of care and sale, should be returned to the makers of the mortgage or to such person as they should direct, in no way impaired its validity; for in the absence of such a provision the law would compel the-restoration to the mortgagors of any part of the mortgaged property remaining in the hands of the mortgagees after their debt and proper charges were paid.
The property mortgaged seems to have exceeded in value the sum due to the mortgagees, and the whole property may have been subject to attachment, in order that any excess after paying the debt' due to appellees, and proper charges, might be subjected to the payment of the debt for which the attachment was made; but as Rogers & Atkinson were not entitled to the possession of the property, as against the appellees, it should not have been taken from their possession unless their debt was first paid; but the levy should have been made in accordance with the provisions contained-in arts. 167, 2292, 2296, R. S.
This was not done; but the mortgaged property was taken from, the possession of those entitled to hold it until their debt and proper charges were paid, and was subsequently sold under an order of court in which the cause in which the attachment was issued was-*431pending. The appellees were not bound to follow the mortgaged property, but might, as they did, proceed directly against the sheriff and the sureties on his official bond.
[Opinion delivered November 18, 1884.]The persons who made the indemnity bond to the sheriff might have been made parties to the suit and their liability to the sheriff have been determined; but it certainly rested on him to take such steps as would bring them before the court promptly, that the cause of the appellees should not be delayed.
No steps were taken to do this, further than by the answer to ask that they be made parties. No objection was made, so far as the record shows, to proceeding with the cause without such parties; but if it had been made, the court would have properly disregarded it, for the want of such parties would not have furnished any sufficient reason for delaying the trial of the cause.
There is no error in the judgment and it is affirmed.
Affirmed.