| Ill. | Apr 15, 1862
If this deed is to be held fraudulent, as hindering and delaying creditors, it must be from the provisions of the deed itself, as there was no extraneous evidence impeaching its validity, and the answer of the garnishee alleges that it was made in good faith. It is insisted that the provision requiring that the assignee “ shall, as soon as conveniently may be, make sale and dispose of such parts of said property as are in their nature susceptible, for the best price in money that can be reasonably had or obtained for the same,” gives to the assignee discretionary power as to the time when the sale shall be made, and only has reference to the convenience of the assignee, and not the interest of the creditors which he represents. The word “ convenient” is defined by lexicographers to be, “ fit, suitable, proper, adapted,” as its primary or ordinary meaning. This, then, required the assignee to make sale in a fit, suitable, or proper manner. In doing so, it is required to be done at a suitable time, for a proper price, after giving a fit opportunity for competition, all adapted to the interest of the parties, the nature of the property, and to effectuate the objects of the trust. By applying the secondary meaning of the word, it might be held to apply to the mere convenience of the assignee, but the rules of construction require that the intention of the parties must be ascertained from the instrument itself.
To ascertain that intention, the primary and popular meaning of words will be adopted, unless it is obvious from the context that they are not employed in that sense. When the popular meaning is applied to this term, it is as apt and proper as any word that could have been employed by the draftsman ; and nothing is perceived in the context that indicates that any other meaning was intended. We are, therefore, of the opinion that the assignee, in conducting the sale, had no discretion conferred which was not implied by the law; that it required him to make the sale at a suitable time, and in a manner best calculated to promote the interest of the parties. Sacket v. Mansfield, 26 Ill. 21" date_filed="1861-04-15" court="Ill." case_name="Sackett v. Mansfield">26 Ill. 21.
It is also urged, that the clause in the deed which provides that if, after the sale of the property and the payment of the preferred creditors, “ anything shall remain of the proceeds of said property, the same shall be paid pro rata to the other creditors of said Jones, and the creditors of the late firm of Howland & Jones, who shall assent thereto,” is an attempt to coerce the creditors who are not preferred to assent to the provisions of the assignment. That it is not an unconditional surrender of the property and effects of the debtor, for the benefit of his creditors. Whatever might have been our conclusion in the light of more modern decisions of the courts on this question, we regard the question settled by the former adjudications of this court, too long acquiesced in as the law to be lightly disturbed. In Conkling v. Carson, 11 Ill. 603" date_filed="1850-06-15" court="Ill." case_name="Trustees of Schools v. Wright">11 Ill. 603, it was held, that a provision of this character did not affect the validity of the assignment. The court says, “ The creditors were left free to become parties to the assignment, and participate in its benefit without impairing their right to proceed against the assignors, for any balance that might remain due them, after the execution of the trust.”
This provision places these creditors in no worse condition than they would have been, if the deed had contained no provision for their benefit. To assent to the provisions of the deed, required them to release no right which they enjoyed. This is wholly unlike a provision, requiring creditors to release the remainder of their claims, before they can participate in the fund. We can perceive no possible injury-resulting from the insertion of this clause in the deed, but a possible benefit to this class of creditors. We are therefore disinclined to depart from the rule announced in Conkling v. Carson.
It is likewise contended, that the provision which requires, that if anything shall remain after paying all the debts of the assignor, and of Howland & Jones, that it shall be paid to the assignor, or to his legal representatives, renders the instrument void. The case of Cross v. Bryant, 2 Scam. 36, and the case of Conkling v. Carson, both hold, that such a provision forms no objection to the validity of an assignment. It is no more than the law would require, independent of such a clause. Who else would have a right to receive the surplus ? When all the debts are paid, and the purposes of the trust accomplished, why should not the trustee pay the surplus to the assignor ? When the debtor has surrendered all of his property, and when it has paid all the creditors in full, what right have they to object to his receiving any balance that may remain ?
It is furthermore and most earnestly urged, that the clause which provides, “ That he, the said Finlay, and his executors and administrators, shall be charged and chargeable with his or their respective receipts, payments, acts and wilfuldefaults, and not otherwise, and shall not be charged or chargeable with or for any sums of money, other than such as shall actually and respectively come to his hands, nor with or for any loss or damage which shall or may happen, in or about the execution of any of the trusts, without his or their wilful defaults,” manifestly renders the transaction inoperative and void. In support of this position, the cases of McIntyre v. Benson, 20 Ill. 500" date_filed="1858-04-15" court="Ill." case_name="McIntire v. Benson">20 Ill. 500, and Robinson v. Nye, 21 Ill. 592" date_filed="1859-04-15" court="Ill." case_name="Robinson v. Nye">21 Ill. 592, are relied upon as conclusive of the question. In the first of these cases, it was held, that a covenant by the assignee to execute the trust faithfully according to the stipulations contained in the deed, being responsible only for wilful defaults, rendered the assignment void. In the latter case, the deed contained an express stipulation, that the trustee should not be liable for more money or effects than he should receive, nor for any loss or damage which might happen thereto, except the same should arise through his wilful default. This was held to vitiate the deed of assignment. And it was for the reason that the parties had stipulated for a less degree of diligence than the law imposes, and which is calculated to endanger the rights of creditors. It licensed negligence, and inattention to the execution of the trust, which the law can never sanction. These provisions áre substantially the same as that contained in the deed under consideration, and they must be held conclusive of this case, unless the effect of the clause is changed by some other provision in the deed.
It is contended, that the covenant of the assignee contained in the deed, has that effect. It is this : “ And the said Fin-lay covenants on his part, that he will faithfully execute all the trusts herein and hereby reposed in him as aforesaid, so far as he may be able with reasonable diligence to perform the same.” By this "covenant, he binds himself faithfully to execute all the trusts reposed in him. But how is he to execute them ? Is it according to law % It is not, but as they are reposed in him by the deed. He covenants to execute them in the manner specified. And they are imposed in such a manner by the deed, that he shall not be liable except for wilful defaults. This is the scope and effect of this covenant. It in no manner limits or controls the former provision, but he only obligates himself to execute them upon those terms. And if guilty of any negligence or omission of duty short' of a wilful default, he would not be liable. It is not contended, that any other clause of the deed modifies or controls the objectionable provision, nor is any such perceived. We are, for these reasons, of the opinion that the trust deed was void, and that the judgment of the court below must be affirmed.
Judgment affirmed.