7 Md. 380 | Md. | 1855
delivered the opinion of this court.
We are of opinion that the question of the validity of the deed of trust from the Messrs. Turnbull to Inloes, is properly presented on this appeal.
The objection raised by the appellees to the present proceeding, namely, that the court of equity having assumed jurisdiction over the subject, has thereby ousted the court of law of the jurisdiction which it now seeks to exercise, cannot be sustained. The equity proceeding which has been set up as a bar to the present action, does not propose to assail the deed of trust, but on the contrary, it rests upon the assumption that the deed is valid, and was intended merely to invoke the aid of a court of equity to carry out and enforce the trusts
The appellants in the court below offered two prayers, each .designed to present to the mind of the court the invalidity of the deed of trust. Both were rejected. The first prayer assigns a number of reasons why the deed should be vacated, and it is now urged by the appellee that if any of those several reasons should not constitute a legal ground for declaring the deed void, it was the duty of the court to reject the prayer iq its entirety, notwithstanding it should appear that the deed was void for some ope, or more, of the reasons assigned, In this view we do not concur. These several legal propositions should be treated as so many'separate prayers, and if one presented a valid objection to the deed, it was error in the court to reject it, It was not proposed by the prayer that all the several objectiops urged to the validity of the deed should concur, in order to make the deed void; and the prayer would have sufficiently raised the point of the viciousness of the deed upon any ground, if no particular reasons at all }md been assigned in the prayer itself for vacating it.
Is the deed of trust void or not, is the question to be determined on this appeal. If void for any reason, it interposes no impediment to the appellants’ right tp recover in this action, but, on the contrary, if valid, the plaintiffs have no case in court.
Although it has been more than once decided in Maryland that a debtor, by the common law, and apart from our insolvent system, may, by assignment of his property, or by payment, secure one creditor to the exclusion of others; yet such a provision in a deed of trust is only permitted by a court of equity, but so far from commending the transaction to the
Third. That said “Inloes, his executors or administrators, shall, at his discretion, sell as aforesaid, all or any part, or parts, of said goods, wares, merchandise, chattels and effects, by public or private sale, and by wholesale or retail, or in parcels, as may by him, as to all or any portions of said property, be deemed eligible, and it being understood that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise.
“Fourth. It is further as aforesaid declared, that said Francis H. Inloes, his executors or administrators, may, at their best discretion, appoint and employ any agent, agents and clerks, for selling as above provided, at such compensations as the said trustees may deem proper, and causing such sales to be made in any store or warehouse that from time to time, as he may see fit, he may rent and have occupied.
“Fifth. It is further declared as part of the trust of these presents, that the said Inloes, or his executors or administrators, shall not, as trustees aforesaid, or in any matter of or relating to this trust, be deemed in any wise liable as for any violation of said trust, or as for any omission or neglect, save only for their own personal, and actual and wilful wrong or default.”
There is no express provision in this deed that the trustee shall sell on credit. The right to do so, however, might undoubtedly be exercised under the power conferred by the deed, “ that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise,”
We are not aware that this question has ever been expressly brought to the mind of our own Court of Appeals, and passed upon by them. In the case of Beatty vs. Davis, 9 Gill, 211, the deed of trust, the validity of which was the question involved on the appeal, contained the provision that the trustee should have power “to sell the said real and personal property, either at public or private sale, and upon such terms and notice as he may deem most expedient, &c., and in case he shall deem it necessary for the purposes of this trust to mortgage the said real estate or any part thereof, he is hereby invested with full power so to do.” This deed was sustained.
It might appear, at first view, that the power to sell upon such terms as the trustee might think proper, was equivalent to an authority to sell upon credit, and therefore our Court of Appeals may be regarded as having sanctioned such a provision in deeds of trust. But in the case of Macham vs. Stearns, 9 Paige, 398, the trustee was directed by the deed to sell the trust property at such reasonable times as should seem proper to him; and in that case, though the deed was sustained, yet it was held that this did not authorise him to sell at retail and on credit: and it is by no means impossible that our own
But omitting the further consideration of this point, (which we repeat we do not wish to be understood as deciding,) we regard the deed now before us as void upon another ground. It expressly empowers the trustee at his discretion to sell the property covered by the deed, gradually, in the manner and on the terms in which, in course of their business, said Turnbull& Co. have sold and disposed of their merchandise.
Without adverting to other objectionable, if not fatal, provisions in this deed, the one to which we have just referred is sufficient, in the judgment of this court, to render the deed null and void as against creditors. It simply seeks, through the instrumentality of a trustee, to provide for carrying on the business of the concern in the same manner in which it had been before conducted, and for an indefinite period, free of all control or interference on the part of creditors. Surely, if such a provision in a deed is not calculated to hinder and delay creditors, we are at a loss to know what could have such an effect, short of a conveyance in trust for the benefit of the" grantor himself. A debtor cannot thus postpone his creditors to an indefinite period, without their assent. A conveyance W'hich thus attempts to deprive creditors of their just rights to enforce their claims against the property of their debtor, by placing it beyond their control, for an uncertain and indefinite period, must be regarded, in conscience and law, as a fraud.This subject has been very fully considered by this court in' the case of Green & Trammell, vs. Trieber, 3 Md. Rep., 11, and the general principle distinctly announced, that the law will not tolerate any hinderance in assignments for the benefit of creditors, beyond what may be necessary for the purposes of the trust.
There are cases, it is true, in which deeds of trust for the benefit of creditors, have been sustained as valid, which contain provisions for- the continuance of the business of the
We will not attempt a review of the numerous authorities which-wmuld bear upon the questions involved in this case. As far as cases have gone in sustaining voluntary deeds of trust, few, if any, can be found, which have advanced princi
The appellant’s first prayer asks the court to pronounce the deed void, and to instruct the jury so to find. This prayer was improperly rejected. The deed appearing to be void upon its face, it was the duty of the court so to pronounce it, and there was nothing left for the jury to find.
Having, as we suppose, disposed of the whole case, by declaring the deed void, we deem it unnecessary to pass upon the appellant’s second prayer, or upon any other of the questions raised in the course of the argument.
Judgment reversed and procedendo awarded.