Joseph v. L. Levi & Co.

| Miss. | Apr 15, 1881

Campbell, J.,

delivered the opinion of the court.

• Because of their susceptibility of abuse, by reason of the ease with which they may be employed for wrong purposes, to the injury of creditors, many courts have condemned, as fraudulent and void, mortgages and deeds of trust on stocks of merchandise which provide for the retention of possession by the maker of the instrument, with power to sell and replenish the goods in the usual course of such business.

This court has committed itself to this view. Harman v. Hoskins, 56 Miss. 142" court="Miss." date_filed="1878-04-15" href="https://app.midpage.ai/document/harman-v-hoskins-7985131?utm_source=webapp" opinion_id="7985131">56 Miss. 142.

The instrument under consideration shows an effort to avoid objection to it, by stipulating for monthly accounts of the business to be rendered to the trustee, and for payment to him of the money received, to be applied under his direction to the maintenance of the business, by payment of current expenses and making purchases to replenish the stock; but, as the money was not to be applied to the discharge of the debt secured by the terms of the deed of trust, and was to be kept in the business, the instrument is not distinguished from those which have been held to be incurably vicious and void.

The deed of trust being fraudulent per se, its execution was ground for an attachment. Roach v. Brannon, 57 Miss. 490" court="Miss." date_filed="1879-10-15" href="https://app.midpage.ai/document/roach-v-brannon-7985369?utm_source=webapp" opinion_id="7985369">57 Miss. 490.

The fair interpretation of the judgment is that it is for the value of the several articles, as shown by the schedule of them, aggregating the total of $3,500. The defendant is entitled to discharge himself pro tanto, by surrendering any of the articles embraced in the schedule, at the, value therein attached to such article.

Affirmed.