59 Miss. 69 | Miss. | 1881
delivered the opinion of the court.
The court below properly held that the deed of assignment in this case was not fraudulent upon its face; and the jury properly found, as we think, that it was shown by the testimony to have in fact been executed by the grantor with intent to defraud his creditors. It is urged however by the appellant that the verdict and judgment must be reversed because of erroneous rulings of the court in giving and refusing instructions to the jury. Thus it is said that the court erred in charging the jury that if they believed that the assignment was made with fraudulent intent on the part of the assignor, the assignee obtained no title, though he himself was ignorant of such intent; and refused a charge asked by the assignee to the effect that he was to be deemed a purchaser for value and therefore acquired a good title by virtue of his own good faith, even though the instrument was made with fraudulent intent on the part of the grantor. Whatever contrariety of opinion may elsewhere exist as to the merits of these conflicting propositions, nothing is better settled in this State, than that he who merely receives a security for a pre-existing debt without the advance of any new consideration, is to be regarded and treated as a volunteer, and not as a purchaser for value. Surget v. Boyd, 57 Miss. 485. All the debts secured by the assignment in the present case except one (to be presently considered) were pre-existing debts, and it is not pretended that any new consideration was advanced either by the assignee or by the creditors, whose trustee he was. The instructions of the court were therefore correct on this point.
It is said, however, that there is one debt secured by the assignment in this case which is not of this character, and that the bona fides of the holder of that claim will uphold the instrument at least to the extent of protecting this demand, without regard to the intent of the assignor. This is the fee due the attorneys, who advised the execution of and prepared the assignment. When called upon for their advice -and assistance in the matter, they demanded a fee of five hundred dollars, and when the debtor professed his inability to pay so large a sum they proposed to release him from all personal liability, and to accept in lieu of it a stipulation in the deed that the fee should be a preferred debt and should be paid by the assignee out of the assets among the first debts secured. This proposition was accepted, and the instrument was drawn accordingly. It is admitted that the attorneys had no knowledge or suspicion that the debtor had any intention of defrauding his creditors in making the assignment, and the entire good faith of the attorneys themselves is conceded. It is hence argued that inasmuch as theirs was a contemporaneously contracted debt, and they gave up all personal demands against the debtor in consideration of being included in the assignment, they are to be regarded as' purchasers for value, and their good faith must protect the instrument so far at least as their own demand is concerned. We cannot assent to this view. We think that the testimony shows an agreement on the part of the attornej^s to risk their fee on the integrity of their client and the validity of the instrument prepared by themselves. But apart from this, we think it unsafe to declare that an instrument intentionally executed by the grantor for the purpose of swindling his creditors is to be upheld in any court for any purpose, by the good faith of the attorney who prepared it, even to the extent of upholding the fee of the attorney. Such an announcement
The second instruction given for the plaintiffs in attachment was too broad. By it the jury were told that the instrument should be avoided, if the grantor was induced to make it by the expectation and hope of subsequent benefits held out to him by any of the creditors secured by it. This is erroneous. An instrument will be avoided which has been induced by the promise that the grantor shall enjoy some secret benefit in the thing conveyed, because this is inconsistent with the professed object of the conveyance, and operates as a fraud upon the other creditors whose pro rata share is thereby diminished. But no promise of future benefits unconnected with the property transferred will avoid the deed, though it constituted one of the principal inducements to its execution. It is the reservation of a benefit in the thing conveyed, not the expectation of some reward independent of it, of which other creditois can complain.
Judgment accordingly.