22 Ala. 238 | Ala. | 1853
The only question made in the case is, as to the validity of the assignment executed by Fleming.
The parts of the deed relied on by the plaintiff in error, in support of the position that it is fraudulent upon its face, are:
1. The statement or recitals which it contains, in relation to a portion of the creditors being disposed to sell the property of the assignor, at a time when there was but little money in circulation, and that his property was more than sufficient to pay his debts, if sold at a more favorable period, and if thus sold, a considerable surplus would be left.
2. That the assignment conferred unlimited discretion upon the trustees as to the time at which, and the terms on which, they should sell the property conveyed.
3. The stipulation allowing the assignor to retain possession of the dwelling-house and slaves, until they should think proper to sell the property.
4. That the assignment contains no schedule of property, no list of creditors, or amounts due either to them or the assignor, and no provision for notice to creditors, or for their becoming parties to the deed.
As to the statements in the assignment, in relation to the disposition of creditors to sell the property of the assignor, at a time when it would not bring its full value, and that a considerable surplus would be left, after the payment of all his debts, if sold at a more favorable period: we regard them as amounting to no -more than a statement of the reasons which operated upon the assignor, in making such a disposition of his property as would, in his opinion, do equal justice to all of his creditors; and if the disposition made by him was sanctioned by law' — -if it was a devotion of all his effects to the payment of his debts, without any reservation of interest beneficial to himself, or prejudicial to his creditors,
The authority giving to the trustees a just and reasonable discretion as to selling at private or public sale, or for cash or upon time, was expressly decided by this court, in the case of Abercrombie v. Bradford, 16 Ala. 560, to be equivalent in its legal effect, to a provision authorizing the trustee to sell for such prices, and on such terms, as he might deem expedient; which reservation, as it invested the trustee with a discretion which, properly exercised, might be beneficial to the creditors, was for that reason sustained. See also, 9 Porter 566.
In relation to the clause which reserves to the assignor the right to retain possession of the dwelling-house and slaves, until the trustees should think proper to sell this property, my own opinion is, that as, by the terms of the assignment, the trustees were bound to exercise a sound discretion as to the time at which the property conveyed should be sold, it was equally their duty in the meantime, to manage such property for the interest of those for whose benefit the assignment was intended; and that a stipulation reserving to the debtor the right, during this period, to the use of valuable and productive property, was not only a reservation for his own benefit, but in direct opposition to the proposed objects of the conveyance, as it enabled him to exercise a control over the property which was inconsistent with the rights of creditors, by taking from them their right to the rents and profits during the time the trustees might think it advisable to hold it up from sale. The tendency of courts of late years has not been in favor of conveyances of this character; and the ease with which frauds are perpetrated under cover of deeds of this description, renders it necessary that they should be subjected to a close and severe scrutiny. I am unable to perceive any valid reason why the assignor might not stipulate for the possession of fifty, as well as nine slaves, and other property, as well as a dwelling-house. The fact that the duration of the possession was uncertain, does not deprive the stipulation of its beneficial character; nor is it any answer to the argument, to say that the law would permit the trustees to allow the retention of this property by the debtor.
The failure to annex a schedule of tbe debts due to, and owing by the assignor, or to provide any mode for giving notice to tbe creditors, or to make them parties to tbe deed, is not sufficient to render tbe deed void upon its face. Cummings & Cowper v. McCullough. Tbe failure to annex tbe schedules may be a suspicious circumstance; but tbe weight of it in that respect was properly referable to tbe jury, and as by the terms of tbe deed no preferences were given, but tbe simple duty of tbe trustees was, to sell tbe property, collect the debts, and appropriate the same to tbe payment of tbe debts of tbe assignor, without distinction or preference, we do not see that it was necessary they should be made parties to tbe deed, or that any notice was required to be given them.
It results from these views, that there was no error in tbe proceedings of tbe court below, and the judgment is affirmed.
The argument contained in the opinion delivered by my brother Groldthwaite, in opposition to the conclusion arrived at by a majority of tbe court, is certainly very plausible; and if the premise upon which it is predicated be correct, it is clearly unanswerable. It is too clear to admit of any controversy, that an insolvent debtor, in the general assignment which he makes for tbe payment of his debts, must fairly and honestly devote the property to the purpose contemplated, and that he cannot place his effects beyond the reach of bis creditors, in trust for bis own benefit, by any stipulation in tbe deed. If a reservation be made in the deed, tbe necessary effect of which is to benefit himself, to the delay, postponement or prejudice of his creditors, sucb provision would render tbe assignment fraudulent and void. We do not differ upon the general doctrine as to what will render a deed void on its face, but in the application of the doctrine. The argument in the opinion assumes, that the stipulation in tbe deed allowing Fleming to retain possession of the dwelling-house and slaves until $ie trustees should, in
"When an instrument admits of two constructions, the one rendering it fraudulent and void, the other honest and valid, the latter should always be indulged, ut res magis valeat quctrn pereat; and also, upon the recognized doctrine, as frequently asserted by this court, that we should never indulge a pre
The consequences which my brother Goldthwaite thinks may follow from this decision, can never result, so long as we may repose confidence in the correctness of the finding of juries.
In these views a majority of the court oonour.