This suit was instituted by appellee, Mrs. D. D. White, individually and as the duly qualified survivor of the community estate of herself and her deceased husband, D. D. White, against the Manhattan Life Insurance Company, a corporation, and appellant, the First National Bank of Bryan, Tex., a federal banking corporation, to recover the sum of $1,753 on an insurance *Page 1121 policy issued by said company on the life of her said husband. Appellee alleged that her said husband, on March 3, 1917, assigned said policy to appellant to secure his indebtedness to it; that thereafter, on October 10, 1931, he and appellant entered into a written agreement by the terms of which it agreed that if he would make an assignment of the business of the White Motor Company, a business then and there owned and conducted by him, to Wilson Bradley as trustee for his creditors, that it would release him from all his indebtedness to it; that he had made said assignment and was thereby released from all such indebtedness. The life insurance company made default. Appellant filed an answer in which it alleged that it held said policy under an assignment from the deceased White to secure his indebtedness to it; that such indebtedness was evidenced by a note in the sum of $5,400; that said policy was the only security from which such indebtedness could be collected; that said policy belonged to it or to the creditors of the estate of D. D. White, deceased; and that it, by reason of its assignment, had a superior right to the proceeds thereof. Appellant further alleged that while it did agree that deceased White should make such assignment to Wilson Bradley as alleged, that it was expressly stipulated in such agreement that secured claims should be paid first; that such assignment was never carried out and it did not receive anything therefrom, and that the same was by judicial decree held ineffective and declared to have never been consummated in the manner provided by law for statutory assignments; that its agreement that such assignment should be made as aforesaid was entirely without consideration and therefore null and void, or that, if any consideration ever existed, it had wholly failed.
The case was tried to a jury. The court overruled a motion by appellant for an instructed verdict in its favor and submitted certain special issues, in response to which the jury returned findings in substance as follows:
It was the intention of D. D. White and the First National Bank, acting by and through its president, H. O. Boatright, in the execution of the instrument in writing dated October 10, 1931, that the same should operate as a release of said White's indebtedness to said bank.
There was a consideration from said White to said bank for the execution of said instrument.
The consideration from said White to said bank for the execution of said instrument did not fail.
The court rendered judgment in favor of appellee as survivor of the community estate of herself and her deceased husband and also in her individual capacity against the Manhattan Life Insurance Company of New York, a corporation, for the sum of $1,753, the amount due on the policy sued on herein, and also rendered judgment canceling all right, claim, title, or interest of appellant in and to the proceeds of said policy.
A plea of res judicata, whether interposed in bar of recovery or as an estoppel to deny some particular fact in issue in the pending suit, must show that such fact was distinctly put in issue and directly determined in the suit in which the judgment pleaded was rendered. 26 Tex.Jur. p. 11, § 353. We do not think that the validity of the assignment to Wilson Bradley, trustee, for White's creditors generally, was put in issue by the pleadings in said former cause, and that the judgment rendered therein therefore lacks a necessary element of estoppel. Such a plea to be effective must further show that the suit in which the judgment relied on was rendered was between the same parties as in the pending suit in which the estoppel is claimed. Appellant was not a party to said former suit. Appellant claims that Wilson Bradley represented it and all *Page 1123 other general creditors of said White and that it was therefore, through said Bradley, a party to said suit by representation and entitled to claim the benefit of any adjudication therein, under the rule announced in Galveston, H. S. A. Ry. Co. v. Butler, 56 Tex. 506, 511, and Cavers v. Sioux Oil Refining Co. (Tex.Com.App.) 39 S.W.2d 862, 866, pars. 5 and 6. We do not think that the rule so relied on is applicable in this case because Wilson Bradley, at his initial appearance in said cause, resigned his trusteeship, turned over the property, and asked to be discharged from his trust. He was therefore not a party to any controversy raised by the pleadings of the plaintiff in that case or determined by the court in said judgment. We do not think that the facts recited constituted, as a matter of judicial knowledge by the trial court, an estoppel by judgment, precluding an assertion by appellee that White executed said assignment in pursuance of said written proposition made to him by appellant and others, that such assignment was valid, and that the execution thereof constituted an acceptance of such proposition and a consideration for the promise of release contained therein. Neither do we think that the court erred in refusing appellant's motion for an instructed verdict in its favor on the ground of estoppel.
Appellant, by various assignments of error, contends that the property of the assignor which passed to the trustee included the policy sued on, and that its prior assignment of the same to secure the indebtedness of the assignor was superior to the rights of other creditors and to any right remaining in the assignor or his survivor, and that as a matter of law it could recover and appellee could not recover herein. Appellant, by its pleadings, conceded that it held said policy only as security for White's indebtedness to it. In further support of its right to recover, it alleged that it had never received anything on the indebtedness due it at the time of the assignment and that there was no other property which could be subjected to its debt. The written proposition by appellant and others to White upon which the assignment was executed provided that the signers thereto would abide by the amount they received from the assignment and discharge the assignor from further liability. Appellant offered no testimony in support of its allegation that there was no other property which could be subjected to the payment of its debt. It offered no testimony concerning what became of the property specifically assigned. It did offer testimony that no part of its debt had been paid, but in view of the fact that White was dead, that Boatright, with whom a part of his transactions were had, was also dead, that payments, if any, on its debt were particularly within the knowledge of the bank's officers or employees, and that the witness tendered to prove nonpayment was an interested one, nonpayment of its debt was not established as a matter of law. Thraves v. Hooser (Tex.Com.App.) 44 S.W.2d 916, 921, par. 4, and authorities there cited; Chicago Fire Marine Ins. Co. v. Harkness (Tex.Civ.App.) 58 S.W.2d 171, 172, pars. 1, 2 and 3, and authorities there cited; Strickler v. Kassner (Tex.Civ.App.) 64 S.W.2d 1025, 1026, par. 3, and authorities there cited; Smalley v. Octagon Oil Co. (Tex.Civ.App.) 82 S.W.2d 1049, 1052, 1053, pars. 5 to 7, and authorities there cited. Appellant did not request the submission of any issue and must be deemed to have waived the benefit of any fact finding in support of its contentions. Every assignment for the benefit of creditors leaves a resulting trust in the assignor which may be asserted by him or his successors under certain circumstances. 3 Am.Eng.Ency. of Law, p. 153. The life insurance company did not assail the right of appellee to maintain this suit nor to recover the amount due on said policy. Appellant, to assail her right to recover, had to at least establish a right to recover in itself, which involved, according to its own allegations, a showing that nothing could be reasonably expected by it from the property specifically assigned, and, under the state of the testimony above recited, securing a finding that its debt had not been paid, none of which it did.
The judgment of the trial court is affirmed. *Page 1124