97 Ala. 437 | Ala. | 1892
— M. J. Mullane, an insolvent merchant, executed to Meyers what professed to be a general assignment of all his stock in trade and other property, of value many thousand dollars, for the benefit of his creditors. The instrument was in due form, perfect in all its parts, possessing no infirmity whatever as a complete legal transfer of all the property of the assignor for the payment of his debts, except that it concluded with the following clause : “But the party of the first part making this assignment reserves to himself any and all exemptions to which he is entitled under the laws of the State of Alabama.” The assignee accepted the trust; took immediate possession of all the property and entered upon the duties prescribed by the instrument. At this point the appellees and J. J. Callaghan and J. A. Mullane, alleged creditors of the assignor, and defendants in this bill, attached all the goods in Myers’ possession.
As the bill itself states, its theory is, that the assignee acquired by the assignment an equitable title to the goods, which it was and is his duty to. assert; that assets have been and are about to be taken from him and diverted from the trust, by proceedings of renouncing creditors in conrts of law, enforced through the legal title rf the assignor, and based, in part, upon simulated claims; and that equity should intervene and enforce the equitable title, restrain the further collection and diversion of the assets by the attaching creditors ; compel the restoration of the funds received
The question, then, first to be determined, is, What is the nature and effect of the instrument in question? Does it convey a legal title, or a mere equity, or neither ?
We remark just here, that the expression “reserves to himself” was used, in the clause quoted from the assignment, in the sense of an exception, and not a reservation. As may be seen from authorities cited hereafter, a reservation is a clause in a deed whereby the grantor reserves some new thing to himself issuing out of the thing granted and not in esse before ; but an exception- is always of a part of the thing granted, or. out of the general words or description in a grant. The books call attention to the frequent misuse of these terms; but in all cases effect is given to the clause as a reservation or exception, according to the subject-matter to which it applies, without regard to the term used. We will speak of it, then, in this opinion, as an exception. The validity of assignments for creditors, as affected by exceptions of exemptions like that in the present case, has frequently undergone discussion and adjudication in our highest courts. It is conceded, we believe, in all the authorities, except one in Tennessee, since overruled, that such an exception does not render the conveyance fraudulent, because creditors have no right to subject exempt property to their debts, and the exception therefore does not prejudice them. That is the settled doctrine of this court. The point of attack lies in its alleged invalidity said to be found in the want of sufficient identification and description, in the instrument, of the property attempted to be conveyed. It is said to be an attempt to convey an uncertain and undefined part only of a larger quantity or mass of property, and, therefore, inoperative and void.
Our research discloses that the courts of last resort of Penn., Wisconsin, Iowa, Marylaad, Kansas, Indiana, Kentucky, and Texas, have passed upon such assignments and sustained their validity. — 26 Penn. (St.) 473; 69 Wis. 561; 63 Iowa, 25; 10 Atlantic Rep. (Md.) 289; 22 Kan. 106: 18 Ind. 507; 78 Ky. 297 and 22 Tex. 709.
The question, however, of sufficiency of identification of the property to pass.the title Avas not raised or considered in the cases cited. In each case, the assignment Avas assailed as fraudulent, by reason of the exception, and that contention being OArerruled, the instrument was upheld as a valid legal conveyance and enforced accordingly.
The Supreme Courts of Michigan, Missouri, Mississippi,
In the case of Sugg v. Tillman, supra, no authorities are cited, and the point is dismissed with the following reasons: “But upon another ground it,” the clause excepting exemptions, “would avoid the deed. It is in the nature of a sale ‘of all the property of the vendor of the same nature to these trustees for the payment of debts, except so much of the same as he is allowed by law to hold exempt from execution. Now what is sold is not separated from that which is reserved from the sale. All the corn lies together in a heap, all the pork in the smoke-house, all the horses in the stable, all the cows in the pen, &c., &c. The vendees or trustees can not bring trover for the quantity conveyed to them, because, it is not separated from the part retained. They have no title in any particular thing or quantity. The debtor may pass his claim from one part of the bulk to another under this undefined right until all is consumed. The property, therefore, under this principle,’ not passing at all, remains subject to other execution creditors, to the complainants.” In Block v. Maas, supra, the reasoning is short and we quote it: “The distinction between a bargain and sale by which title passes immediately to the vendee, and an executory agreement, the goods remaining the property of the vendor until it is executed, cannot be more certainly and clearly traced in any class of cases, than where there is a power of selection reserved by the vendor, or by the vendee, to distinguish and identify the goods sold from other goods in the possession of the vendor”. The law is said to be stated very perspicuously by Bailey, J., in Gillett v. Hill, (cited in Benj. on Sales, p. 258) in the following words: “The cases may be divided into two classes; one, in which there has been a sale of goods, and something remains to be done by the vendor; and until that is done, the property does not pass to the vendee so as to entitle him to maintain trover. The other class, of cases is where there is a power of selection in the vendor to deliver which he thinks fit; then the right to them
There is a very important rule, in the construction of conveyances, applicable with peculiar force, it seems to us, to instruments of the kind in question, utterly fatal to the correctness of the conclusions reached in Sugg v. Tillman, Block v. Maas, and Myers v. Conway, supra, and which those decisions entirely overlook. It is a settled principle, declared in the old text books, and coming down to us without dissent or contrariety of opinion any where, that, when, in a grant or conveyance, complete ana perfect in itself, of property well identified and described, there is embodied an exception from the grant of an uncertain and undefined part of the property conveyed, the exception is void for uncertainty and the grant is good. It is but the complement or resultant of the principle that a deed delivered must have effect, if possible, and its terms be taken most strongly against him who makes it. — 1 Shep. Touch, 78; 4 Kent Com. 468 ; 2 Hilliard on Real Prop. 372; 3 Wash. Real Prop. 4th Ed. 431; Tiedman on Real Prop. 843; Devlin on Deeds, § 979, et seq., Thayer v. Torrey, 8 Vr. (N. J.) 339; Ditman v. Clybourn, 4 Ill. App. 542; Rockafeller v. Arlington, 91 Ill. 375; Darling v. Crowell, 6 N. H. 421; Reidenger v. Cleveland M'g. Co., 39 Mich. 30; Richardson v. Marqueze, 59 Miss. 80; Brooks v. Nichols, 17 Mich. 38.
In 1 Shep. Touch, 77, an exception in a deed is thus defined, and its requisites stated: “An exception is a clause of
It is most clearly to be seen that if there is any uncertainty in the Mullane assignment, it is in the description and identity of the goods attempted to be excepted from the grant by the clause in question and not in the grant itself. The grant itself is absolutely certain, It embraces all the prop
But, we do not think the clause in question, in Mullane’s assignment is, in law, uncertain or repugnant or for any reason to be avoided, unless waived by the assignor by want of timely exercise of the right it reserves. Considering our exemption laws, conferring a privilege upon the. debtor to select and claim by methods prescribed by law, under control of the courts when such control is invoked, so much property as exempt; and considering the situation of the parties at the_ time; the immediate delivery of all the property to the assignee, and the objects they had in view, the practical and true_ interpretation of the clause, in question, is, that Mullane retained his right to select and claim his exemptions by some proper process, and in proper time, in the course of the administration of the trust, and have the same set off to him and excepted from the operation of the assignment. The clause does not purport to be a perfect exception in itself, operative eo instant,i on the execution of the deed, but contemplates & future act to be done by the assignor to give it operation. It is in the nature, therefore, of a defeasance— a condition subsequent, so to speak — inoperative until the
But there is another reason for which it is manifest the assignment passed the legal title to Myers. It was shown in Myers v. Gomuay, supra, and averred in the present bill, that immediate possession of the property was delivered to Myers by Mullane under and by virtue of the assignment. If it be conceded that the description of the property, as set forth in the instrument, was so insufficient that, by the terms of the deed, the title did not pass, the delivery of property, under the deed, as and for the property intended to be conveyed, cured the insufficiency. This is a well settled rule in reference to mortgages and conveyances of personal property where writing is not essential to pass the title. — Parsons Sav. Bank v. Sargeant, 20 Kan. 576; Williamson v. Steele, 3 Lea (Tenn.) 527; Morrow v. Reed, 30 Wis. 88; Burrell on Assign., § 282; Faxon v. Durant, 9 Met. (Mass.) 339; Mead v. Phillips, 1 Sand. Ch. 83. The delivery of the property was its absolute appropriation to the deed, and of itself ascertained the property intended to be conveyed, be the description in the deed itself never so defective. We apprehend, no one would contend that after such voluntary delivery upon the express trusts declared in the deed, the assignor could recover the property from the assignee until selection of his exemptions, and then only the property selected.
The Missouri Court of Appeals, in Rainwater v. Stevens, supra, gives another plausible ground for upholding such assignments, to which we merely refer without stating it.
We will not further enlarge the discussion. It is clear the cases of Block v. Maas and Myers v. Conway, supra, upon the point discussed, can not be sustained. We value the rule stare decisis. Decisions of our highest courts should not be lightly overruled; but when it is made manifest that
The result of this conclusion is, that the attachment levies upon the goods were trespasses upon the possession of the assignee which it was his duty • to redress by some appropriate remedy. He pursued a course marked out by law; prosecuted his claims, we assume, in good faith and with due diligence, and met with the adverse judgments of the court. By those judgments the right of appellees, attaching creditors, to condemn the goods was conclusively ascertained, and the assignee became conclusively bound to pay the assessed value of the goods and costs. His title being legal, he had his full day hi court, and has no equity to retry the issues now, in a court of equity; and the beneficiaries in the trust have none. The judgments, in the absence of collusion, conclude him and them, whom he represents, alike. The appellees will not be restrained in enforcing their judgments, and the assignee will be protected against the claims of other creditors, to the extent .of the liability, fixed by the judgments, upon the property levied upon. There is, therefore, no equity in the bill as against the appellees.
But the defendants, J. J. Callaghan and J. A. Mullane, have not appeared. Against them, the bill alleges a distinct special equity, which, if supported by other necessary allegations omitted from the present bill, may take them without the influence of tlie conclusiveness we have accorded to the judgments of the appellees, and give complainants a standing in court against them. The bill, in effect, avers that they obtained their judgments of condemnation and statutory executions against the assignee upon simulated claims against M. J. Mullane, the insolvent; and received from the assignee assets of the trust estate in payment of such claims; and it is prayed that they be decreed to refund the assets so fraudulently received, by payment into court for the purposes of the trust. As we have said, these defendants have not appeared, and hence, no issue of law or fact has been formed-upon these averments. Complainants were entitled to have the bill retained in court for such issue. Its dismissal, however, was absolute as to all the parties, and therein the City Court erred. The decree is reversed, and a decree will be here entered dismissing the bill for want of equity, as against all the defendants, except Demetrius E. Myers, J. J. Callaghan, J. A. Mullane, Michael J. Mullane and First National
We notice confusion in the bill on one point. It is loosely, indeed, only inferentially, shown that Callaghan and J. A. Mullane received payment of their demands; and yet the bill avers that they, with the other attaching creditors, are proceeding to conclemn the funds in bank by garnishment. The bill should be put in better shape upon this point. The First National Bank may or may not be a proper party in the further progress of the cause according to the facts. The appellees having moved for and procured an absolute dismissal of the bill as to all the parties, let them pay the costs of the appeal.
Reversed, rendered in part and remanded.