On Motion for Rehearing.
Appellees insist in their motion for rehearing that we are in error in holding that the property involved in this suit can be held in the garnishment proceedings directed against the partnership of the A. L. & K. Dry Goods Company, because at the time of the institution of the suit and the service of citation, said partnership had been dissolved by the withdrawal of two of its members, and the partnership as originally composed no longer existed, and that the A. L. & K. Dry Goods Company, which owned the property at the time of the institution of the suit, was composed of different members, and therefore constituted a different partnership.
It is admitted by appellees, both in their pleadings and in the evidence, that the A. D. & IC Dry Goods Company, after its membership was limited to George and Lawrence Ludeman, acquired the fixtures.involved, and was in possession of, and claiming ownership thereto, at the institution of and trial of the suit. Under the pleadings of appellants and appellees, this suit resolved itself into a controversy as to whether or not the A. L. & K. Dry Goods Company, the members of which were George and Lawrence Ludeman only, held title to the fixtures in trust for the appellants and the other creditors of Cecil & Company of Plainview, Tex.
The A. L. & K. Dry Goods Company, Lawrence Ludeman, George Ludeman, and A. C. Kinkead answered, joining issues with appellants as to whether or not said Dry Goods Company and its members, George and Lawrence Ludeman, held the title to the fixtures involved in trust for the appellants and other creditors of Cecil & Co. of Plainview, Tex., and as said fixtures were still in the *349possession of, and title thereto claimed by, said company, George and Lawrence Lude-man, in our opinion, it became immaterial whether or not the property was impounded by the garnishment proceedings, and hence such question was not discussed, contenting ourselves with stating that the contention of appellees as to insufficient service was not tenable. Neither did we hold, as asserted by appellees, that a sale of the entire capital stock of a corporation is in violation of the Bulk Sales Daw. Our holding is that the transaction between O. W. Cecil, acting for Cecil & Co. of Plainview, and W. W. Me-Larty, acting for the Farmers’ Mercantile Company of Perryton, as reflected by the contracts and evidence, show a bulk sale, in violation of the Bulk Sales Law.
In their motion for new trial, appellees present a great number of things which they assert occurred at and during the trial of the ease in district court, but which they admit are not found in this record; hence, they will not be considered.
Appellees state in their motion that every letter written by C. W. Cecil for Cecil & Co. is on the letter heads of the Cleburne store. This statement is not correct, because the letter, a part of which is quoted in the original opinion, does not purport to be written on the letter heads of the Cleburne store, though it does purport to have been written in Cleburne, Tex.
Appellees, in their pleading, request that the court, if it should determine that they hold the title to the fixtures in trust for'the creditors of Cecil & Co. of Plainview, appoint a receiver for the purpose of determining, if in addition to appellants there were other creditors of Cedi & Co. entitled to participate iñ the trust funds, in order that an equitable distribution thereof should be made and appellees protected against suit by such other creditors. The court having found in favor of appellees, no receiver was appointed. However, if upon another trial the occasion arises, we are confident that the trial judge will appoint a receiver, or enter the necessary order for an equitable distribution of the trust fund among all the creditors so as to protect appellees.
Appellees also contend that we were in error in holding that they were not innocent purchasers of .the fixtures, for the reason that they held title in trust for appellants and the other creditors. In support of this contention, they call our attention to Smith-Calhoun Rubber Co. v. McGee Rubber Co. (Tex. Civ. App.) 235 S. W. 321; Friedman & Mellinger v. Maier (Tex. Civ. App.) 238 S. W. 1013; and Collins-Decker Co. v. Crumpler (Tex. Com. App.) 272 S. W. 772. These cases announce the doctrine that neither of the parties, the seller and purchaser, who violate the Bulk Sales Law, can avail himself of such violation to defeat the transaction, as public policy would deny either of them a remedy.
In the instant case the creditors of the seller are invoking the bulk sales statute which says, as to creditors, a sale without compliance therewith shall be void. In interpreting this statute, the Supreme Court, in Owosso Carriage & Sleigh Oo. v. McIntosh & Warren, 179 S. W. 257, 107 Tex. 307, L. R. A. 1916B, 970, cited in the original opinion, holds that a sale in violation of the statute is void as to creditors.
The motion is overruled.