Frow v. Smith

10 Ala. 571 | Ala. | 1846

GOLDTHWAITE, J.

1. There is nothing in this deed from which a court is enabled per se, to determine the fraudulent intention of the grantor; for although it is recited he is largely indebted, it does not thence necessarily follow that he was in failing circumstances, or contemplated immediate insolvency. It seems to fall entirely within the principles settled by this court in Dubose v. Dubose, 7 Ala. Rep. 235; Elmes v. Sutherland, Ib. 262; Pope v. Wilson, Ib. 262, and Graham v. Lockhart, 8 Ib. 1. See also, Ticknor v. Wiswall, 9 Ala. Rep. 305.] The deed appears to be a mere security for the indemnification of the grantor’s wards, and the sureties upon his guardianship bonds. The direction to appropriate the proceeds of the crops to the extinguishment of the debts specified in the deed, is a direction to the trustees, and without the assent of those creditors, would have no effect to prevent them from compelling a sale of the property so soon as their claims were reduced to judgment.

The same right is possessed by any other execution creditor, unable to obtain satisfaction from other effects of the grantor. [Dubose v. Dubose, supra.] In view of these decisions, the court did not err in refusing to exclude the deed from the jury.

2. We think it a mistake to suppose this deed should be considered between the granto.r and trustees, as conveying an absolute estate. It is nothing more than a conveyance upon trusts which are declared by the instrument, and after those are satisfied, the further trust immediately results, to hold the property for the use of the grantor. It is said the deed is absolute, because no law day is ascertained, and therefore the property must remain with the grantees for an unlimited •time: this argument loses its entire force when we consider the coming of age of the wards, or their marriage, are fixed as the periods when payment is to be made to them.

3. It is also urged, that if the deed is considered as a mortgage, the estate of the mortgagor remaining with him previous to the expiration of the law day, is the subject of levy and sale, and that this view of the case was prevented by the course pursued in the court below. There are several answers to this objection at this time. In the first place, it does not appear the question was raised in the court below. If it had been so raised,, it may be that the period had not arrived, when payment was, by the terms of the deed to be made to the wards, and if the fact was otherwise, the opinion, of the circuit court would necessarily have been elicited upon the point, whether the other trusts of the deed were sufficient to support a present estate in the trustees. We incline to the opinion they are so, but decline to determine the point.

Upon the whole, the cause, as presented, is free from error.

Judgment affirmed.