Wheat and Thompson conveyed to the appellee property in trust to sell and pay off debts enumerated in the instrument by which the conveyance was made. That the debts were just and the entire transaction in good faith is not questioned. It is claimed that it was in contravention of the statute in relation to fraudulent conveyances. There is nothing on the face of the instrument from which it can be so held, nor do the facts indicate that it was executed for a purpose that would invalidate it under the statute.

It was executed by persons unable to pay their debts, and gave preference to creditors named, but the right of even an insolvent debtor to do this has always been recognized, in the absence of legislation forbidding it. The property conveyed was evidently not of sufficient value to pay the debts which it undertook to provide for, and there is not the slightest evidence tending to show any agreement or understanding that the debtors were to receive any benefit under it other than such as results from the payment of their debts.

It is urged that the conveyance was in contravention of the statutes regulating assignments. The instrument is in effect a mortgage with power of sale, and not an assignment; and any interest that might by any possibility remain after the payment of the enumerated debts would be subject to the claims of other *317creditors, and might be reached by them through any appropriate process. In such an instrument a claim of defeasance is not necessary, but would be implied from the character of the instrument itself. The only ground on which it could be claimed, with any degree of plausibility, that such instruments are forbidden by the Act regulating assignments by insolvent debtors, is that this Act declares preferences void.

That provision of the statute was considered in LaBelle W. W., v. Tidball, Van Zandt & Co., 59 Texas, 292, in which it was held that the eighteenth section of that act had reference only to assignments made -under it; and, further, that preferences given through instruments other than such instruments as the act contemplates, are valid, unless in contravention of the act concerning fraudulent conveyances. The questions presented in this case have been considered in several cases recently: Stiles v. Hill, Fontaine & Company, 62 Texas, 430; Jackson v. Harby, 65 Texas, 713; Bank v. Lovenberg, 63 Texas, 506; Waterman v. Silberberg, ante, 100.

The appellee was entitled to the possession of the property which the appellants seized or caused to be seized and sold, and for the violation of that right was entitled to recover. In case of an assignment under the statute, no creditor has the right, through any kind of process, to seize the assigned estate and take it out of the hands of an assignee, but must take under it, or be content to reach any estate that may not be properly paid to creditors, through a writ of garnishment, or in some method recognized as proper, should any funds belonging to the estate be paid into court at the close of the assignee’s administration.

In case, however, of a conveyance, in the nature of a mortgage, to a trustee with power to sell, whatever residuary interest the debtor may have is subject to the claims of creditors not protected by it, and this they may reach by any lawful process; but when, by the terms of the instrument, the trustee is entitled to possession, it can not be taken from him upon the levy of an attachment or other writ. (Rev. Stats., arts. 2292, 2296, 167.)

There is no error in the judgment, and it will be affirmed.

Affirmed.

Opinion delivered February 4, 1887.

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