Baum v. A. Pearce & Co.

67 Miss. 700 | Miss. | 1890

Woods, C. J.,

delivered the opinion of the court.

The construction which we have placed upon the deed of assignment forbids our declaring it void upon its face. The deed of assignment, after conveying the estate to the assignee, directs him “ to dispose of for cash or otherwise as is customary or according as the law directs, or shall be agreed upon by a majority of the said creditors all of said property, etc.” The wording is not precise, and the meaning is not free from obscurity, but we must give it such interpretation, if it may be done, as will not destroy the instrument. The maxim ut res magis valeat quam pereat is of force in this case of ambiguous interpretation, and must control. We take it the meaning is, that the assignee may sell for cash, or on time, as is customary in cases of assignments, or as the law directs in such cases, or that he may sell for cash, or on a credit,.as a majority of all the creditors agree. The phrase will bear this interpretation, and this will render the deed free from objection, and we therefore so construe its language.

The deed of assignment conveys, or purports to convey the entire estate of the assignors, including the accounts, notes, and other choses in action of the assignors’ mercantile firm, and refers to schedule B, attached to the deed, as containing an accurate list of such choses in action. In this schedule certain notes are mentioned as being held by A. J. Weems, Jno. T. Hardie & Co., and the Meridian Fertilizer Company, as security for debts due them respectively by the assignors.

On the trial of the plea in abatement interposed by appellees, in the court below, it was shown by some of the evidence, that these notes, named in schedule B as being held by the creditors mentioned were in fact not held by them, but were held by Pearce, the assignor, and were retained by him, and controlled by him at and subsequent to the execution of the deed of assignment. If this holding by Pearce, the assignor, had been satisfactorily established, then, without regard to Pearce’s intention in so holding the notes, the deed of assignment was constructively fraudulent, and the jury should have been so instructed. In that state of the case, the question of Pearce’s intention was not decisive at all; the decisive test was, did or did not Pearce hold and exercise his will in the control of these notes, or any of them, after the deed of assignment had been executed? If he did, then'the deed was fraudulent in law, no matter what Pearce’s motive was, and the jury should have been so informed. A person cannot assign his property for the benefit of creditors and yet hold and control it, even with the best intentions.

Reversed and remanded.