Lincoln v. Field

| Ark. | May 9, 1891

Hemingway, J.

1. Assignment for creditors— Delivery“forth-The determination of this cause depends upon the interpretation of the clause in the deed of assignment containing directions to the assignee. The clause is as follows : “ The said party of the second part shall forthwith take possession of all the estate, property and effects above conveyed and assigned to him, and shall, with all reasonable diligence and within the time and in the manner provided by the laws of the State of Arkansas, sell and dispose of said property', * * * and shall dispose of such proceeds when so converted into money in the following manner.” As applicable to it, the court made the following declaration of law: “The deed of assignment gave immediate possession to the assignee before bond filed, and upon its face is fraudulent and void as to creditors.”

It is conceded that if the deed directed an immediate change of possession, the legal conclusion was right. What was meant by the direction that the trustee should “ forthwith take possession of the property and estate conveyed ?” The appellant contends that it meant only that he should take possession within a reasonable time, considering the character and situation of the property and the legal duty imposed upon him in the premises; and that as the law required him to make and file an inventory and bond before taking possession, the direction should be construed as not ■providing that the taking of possession should precede the ■discharge of this duty.

To sustain his contention he relies first upon what he contends is an accepted meaning of the word forthwith. Webster defines forthwith as meaning “ Immediately, without delay, directly,” while Worcester gives the same definition, omitting “directly.” In this sense if an act is directed to be done forthwith, it seems to exclude the idea of other acts intervening between the direction and its execution. But as some time is necessary to the doing of everything, varying in length with the thing to be done, the word has in law received a more liberal interpretation. Bouvier’s definition is, “As soon as by reasonable exertion, confined to the object, it may be accomplished.” This seems to be the accepted legal sense of the word. Applying it, how stands the clause under consideration? It will be observed that nothing is said of making an inventory or giving a bond, and that the only thing directed to be done forthwith, and the only object thus to be accomplished, is to take possession of' the assigned property; so it should be construed to require that he take possession as soon as by reasonable exertion he could acquire it, while the right to possession was immediate. The property comprised a stock of goods in a store in the town in which the deed was executed, and by reasonable exertion the trustee might have obeyed the direction before it was possible to have complied with the law.

It is contended that the deed, when looked at as a whole, shows that the grantors intended that possession should be taken after the statutory requirements had been satisfied. We are cited to the provision that the trustee should sell according to law, and should receive such compensation as. the court might allow; and this, it is claimed, shows that no fraud was intended. This might tend to show that there was no actual corrupt intent, but does not show that the parties did not intend what they plainly said—to do an act which the law stamps as fraudulent without regard to intent. The deed recites that the assignors would make and file a' complete inventory of the property assigned, and it is-argued that this shows that there was no intention to change the possession until an inventory could be made. The conclusion does not seem a necessary sequence from the fact. The law requires the trustee to make an inventory before he takes possession, and it is sometimes observed ; if he can make an inventory before he acquires possession, the assignor can make one after he parts with possession. So we cannot say from this provision that the parties did not intend that the direction should mean what its terms imply. That they intended what is said, might be inferred from the other part of the same sentence; for, when fixing the time when possession shall be taken, it says forthwith; and, when fixing the time when a sale shall be made, it says, with all reasonable diligence and within the time and in the manner fixed by law. It thus appears from the context that a direction to do a thing “ forthwith ” was not regarded as synonymous with a direction to do it with “ all reasonable diligence.” The direction is one found in old precedents, formulated at a time when it was held a badge of fraud for the assignor to retain possession after executing the deed, and was intended to accomplish an immediate transfer of the property. We have been able to find nothing in this deed to show that the word was used in a sense different from its earlier uses.

%. const rue-m°nt. ass’Bn Counsel contends that the ordinary meaning should not be placed upon the word, and relies upon the lawful conduct of the parties under the deed, and further upon the rule that where two different constructions of an instrument are possible, one of which will uphold and the other avoid it, the former should be chosen. But those aids in the construction of an instrument may be resorted to only where its meaning is uncertain, and cannot be invoked, where its meaning is certain, to extend or limit its terms or to import into its provisions matters not incorporated by the parties.

We think the deed admits of but one construction, and that one stamps it as fraudulent in law. The judgment is affirmed.