83 Miss. 624 | Miss. | 1903
delivered tbe opinion of tbe court.
By agreement tbe only question for decision in tbe court below and in this court is whether tbe trust deed in tbe record is or is not “fraudulent and void, in law, on its face,” as to the existing creditors; that is, in tbe language of tbe agreement, “as to creditors existing at this time.” We shall examine tbe question as if tbe agreement meant creditors existing at tbe time tbe trust deed was executed. Tbe investigation, on familiar principles, must begin with tbe assumption 'of validity, and with tbe duty, if tbe construction of tbe instrument be doubtful, to solve tbe doubt in favor of its integrity. Actual, fraud is eliminated from this inquiry, and tbe only question to determine is whether, on its face, by construction of law, its effect would be to unduly binder or delay or defraud creditors.
Tbe instrument in question was executed April 4, 1901, by A. -J. Melton and bis wife, and acknowledged on tbe same day, and filed for record April 12th of tbe same year. It is a trust deed to E. S. Drake, trustee, to secure Stewart Bros. & Co., and their interest has been assigned. This instrument conveys to tbe trustee, in trust, certain lands, and we now direct attention to tbe parts of tbe document pertinent to tbe issue in tbe case before us. After conveying tbe lands, their buildings and appurtenances, it then conveys to tbe trustee “all of tbe rents, issues, profits and crops thereof, or annually arising there
As is said by Judge Campbell in State v. Hemingway, 69 Miss., 505,10 So., 576, this “is not an assignment, and subject to tbe strict rules in sueb cases, but a mortgage enforceable on a contingency consisting of future developments.” Here tbe conveyance is absolute, witb no reservation of any interest in tbe grantors, and as in Witczinski v. Everman, 51 Miss., 841, “it gives on its face information as to tbe extent and purpose of tbe contract so that a purchaser or junior creditor may, by an inspection of the record, and by ordinary diligence and common prudence, ascertain tbe extent of tbe incumbrace.” Tbe inapplicability to this case of tbe authorities cited by appellees' — ■ Arthur v. Commercial Bank, 9 Smed. & M., 429, 48 Am. Dec., 719; Farmers' Bank v. Douglass, 11 Smedes & M., 469 ; Henderson v. Downing, 24 Miss., 113, and Harman v. Hoskins, 56 Miss., 144 — will plainly appear upon slight examination, in tbe light of tbe reasons given by counsel for appellants, which we cannot improve upon. In support of our conclusions, we are content witb tbe authorities cited in tbe briefs of counsel for appellants.
■ Beversedj and decree here dismissing the bill, with costs of both courts taxed against appellees.