Opinion on rehearing,
Riddick, J.In his brief in support of the motion for rehearing filed in this cause, counsel for appellant insists that the fact that the cotton mentioned in the conveyance was to be sold within thirty days, and also that the choses in action were to be collected within thirty days, shows, in connection with the other facts in the case, that these conveyances constituted an assignment. These facts were not overlooked by the court.
The cotton had already been consigned to appellee for sale at the time these instruments were executed, and they only stipulated that the cotton was still to be sold by appellee “ in the usual way within thirty days,” and that the proceeds should be applied on their indebtedness to appellee, including the debts assumed to be paid by appellee. The right to sell this cotton and to collect the choses in action given appellee was not as a trustee of the creditors whose debts it had agreed to pay, but as the cotton factor and agent of Oppenheimer & Co. The money to be realized was, subject to the lien created by the pledge, the money of Oppenheimer & Co., and, under the provisions of the pledge, was to be paid on the debt due appellee, and to go towards the redemption of the other property pledged. In deciding this case, we based our opinion mainly on the fact, as found by a majority of the court, that the property in question ‘‘was not conveyed or delivered to appellee to be disposed of for the purpose of raising a fund to pay creditors, nor to be held in trust for creditors.” After considering the able argument of counsel for appellant, we remain of the same opinion still, and the motion to rehear is overruled.