Evans v. Lamar

21 Ala. 333 | Ala. | 1852

LIGON, J.

— Two questions are raised on the record by the assignment of errors: 1. Is an execution in the hands of the sheriff a lien on the ungathered crop of the defendant? 2. Is the deed from Obediah Lamar to Dent Lamar fraudulent on its face, and void as to his creditors ?

1. While it may be conceded that an ungathered crop is regarded as the chattel of the person who owns it, and, by the common law, is subject to be levied upon and sold under execution for the payment of his debts; yet the legislature of this State has, by special enactment, exempted such property from levy and sale under execution. Clay’s Dig. 210, § 46. This act was construed by this court in the case of Adams v. Tanner & Horton, 5 Ala. 740, and it was there held, that the lien of a fi.fa. does not attach until the crop is gathered. We are satisfied with this construction, and are not inclined to disturb it.

2. A deed which postpones a creditor in the collection of his debt, beyond the time of its maturity, is not valid as a conveyance of the property mentioned in it, until it is assented to by tbe creditor. Until that time, it is a mere power, and may be revoked by the levy of an execution by the creditor on the property intended to be conveyed by it. Neither will the assent of the creditors to such a deed be presumed. Nelson v. Dunn, 15 Ala. 502; Lockwood v. Nelson, 16 Ala. 294; Smith v. Leavitts, 10 Ala. 93 ; Graham v. Lockhart, 8 Ala. 9; Elmes v. Sutherland, 7 Ala. 262.

But where the deed is absolute in its terms, and conveys property to the trustee for the benefit of certain specified creditors, who have not executed it, but whose debts are not postponed beyond their maturity, the assent of the creditors will be presumed, and the deed is not a mere power, but will be regarded as a valid and operative conveyance. Kinnard v. Thompson, 12 Ala. 487; Maulden, Montague & Co. v. Armistead, 14 Ala. 702; Lockwood v. Nelson, 16 Ala. 295.

In the deed under consideration, the property is conveyed absolutely to the trustee, for the payment of all the debts enumerated in it, and no condition is imposed prejudicial to the creditors, or restrictive of their rights. Neither is any benefit to the grantor stipulated for bjr its provisions. The discretion as to the time and manner of selling the crops conveyed, which, by its terms, is given to the trustee, does not affect the bona fides of the transaction, or tend to delay the creditors in the collection of the debts secured. Were the trustee to refuse to act promptly or within a reasonable time, they might compel him in equity to do so, or have him displaced, and one appointed who would faithfully execute the trust created by the deed.

Wc are clear that the deed is not fraudulent on its face, and that there was no lien on the cotton, in favor of the plaintiffs in error, resulting from their execution in the hands of the sheriff, at the time the deed was executed, unless it be on that part, if any, which was gathered at that time.

The ruling of the court below is entirely consistent with these views, and its judgment is consequently affirmed.