74 Miss. 700 | Miss. | 1897
delivered the opinion of the court.
The one thing raised into prominent relief by the record, standing out clear and distinct as a mountain in the landscape, is the purpose of Lancitot to secure payment to the creditors named in the trust instrument. It was about that he was exercised. That had been, for some days prior to the execution of either instrument, fully and finally determined upon by him. They had furnished the money upon which he had operated, had been his friends in need, and, naturally, he desired to, and determined to, protect them by preference. And, so far as any fully formed purpose as to the disposition of any of his property was concerned, that purpose was the only one originating with him, as determined upon by him up to the time of the conversations with his attorneys. True, he told Bowen some two days before the instruments were executed, that if he made an assignment, he would be protected; but this shows only
Time is of evidential value only, greater or less according to • the particular circumstances of each case, not determinative. Peed v. Elliott, 34 N. E. R., 320; Shillito v. McConnell, 26 N. E. R., 832. When the time between the execution of the instruments is very short, the inference of identity of transaction, oneness of purpose in making both, is, of course, stronger. But it is true, also, that where attention is directed too exclu
It involves a plain fallacy to argue that whatever Lancitot’s first purpose may have been, when his attorneys suggested to 'him the then necessity of an assignment, he then changed that first purpose, and formed the one new purpose of making both instruments; for the first purpose was not changed, the trust deed being executed in pursuance of the original unchanged purpose, and the assignment was the product of a wholly distinct purpose then first formed.
What was done as to extending the receivership over both trust estates could not alter the essentially distinct natures of the trusts. That was mere administration of two separate trusts, specially prayed to be separately treated. This is so decided, in principle, in Field v. Geohegan., 16 N. E. Rep., 912. Much stress is placed on White v. Cotzhausen, 129 U. S., 329, by learned counsel for appellants. But, as clearly pointed out in the masterly opinion of Kellam, J., in Sandwich Mfg. Co. v. Max, 24 Lawyers’ Rep. Annotated, 529, the supreme court of the United States professed in that case only to enforce the law of Illinois as it supposed it to have been announced in Preston v. Spaulding, supra. And it misconceived that case, as is shown in the case of Union Bank of Chicago v. Kansas City Bank, 136 U. S., 223; and in this case it is also shown that some of the circuit judges of the United States had similarly misconceived the decisions of the supreme court of Missouri. See, also, May v. Tenny, 148 U. S., 60.
The case of Sandwich Mfg. Co. v. Max, supra, is remarkable for the vigor and ability with which it emphasizes the doctrine that in those states where preferences are prohibited in general assignments, the prohibition is not of preferences per se but of preferences in such instruments, and of the right of
There is observable in the earlier holdings on this subject in states where preferences in general assignments are prohibited, a tendency to construe as one general assignment, in fraud of such statutes, an assignment and any other disposition of property — such as mortgage, trust deed, confession of judgment, etc. —or any such instrument whereby all is disposed of preferentially, or any two or more such instruments. But many recent and well-considered cases point out the fact that preferences were allowed at common law; are now, by statute, in those states expressly allowed to be made, except in general assignments; that the principles of an insolvent or bankrupt law must not be confounded with those to be applied to the making of general assignments; that a single mortgage or trust deed disposing of all is not necessarily a general assignment, within the meaning of these statutes against preferences in general assignments (Kohn Bros. v. Clement, Morton & Co., 12 N. W. Rep., 550), and mark out clearly the distinction between an assignment and a mortgage or trust deed, showing that an assignor intends to divest himself not only of the title to his property, but the control; that an assignment is “made in view of insolvency — that it is the initiation of proceedings for the absolute disposition of the property and distribution of the proceeds;” but that the purpose of a mortgage or trust deed, if it is what it purports to be, is quite different. And hence many cases, in such states, now hold that where there is no assignment, but a mortgage or mortgages, or trust deed or trust deeds made, conveying all, to secure bona fide debts, they are not the kind of general assignments meant by these statutes, and that though that is a general assignment, yet if a trust deed or mortgage precede it, in purpose or execution, by never so short a time, the two are not one general assignment, as held in Shillito v. McConnell, supra. See, in addition, illustrating these propositions, Kahn Bros. v. Clement, Morton
Of course, where the purpose first formed is to make a general assignment, and, as part of that purpose, to prefer usurious debts by separate instruments, and both were executed in pursuance of such purpose, both are parts of a common scheme in fraud of our chapter 8 of the annotated code, and where usury exists in either, both will be held to constitute a general assignment, and will fall at the attack of one entitled to set up the usury.
Many other grounds of assault upon the assignment are set up by cross petitioners. We cannot notice them seriatim. As to the John E. Hurst & Co. claim, the testimony is insufficient to sustain a rescission for fraudulent representations; and the cross petition of Schloss Bros, and Dunham, Buckley & Co. contains no allegation whatever as to any false and fraudulent representations of Lancitot’s financial condition. An amendment for this purpose seems to have been obtained at the hands of the court, but the record fails anywhere to show that the amendment was ever made in this cross petition. The testimony on this subject, under this petition, was therefore properly excluded.
There are other assignments of error, all of which have been carefully considered, but a special notice of which would too much protract this opinion. It is enough to say that we concur, as to all of them save one, throughout, with the learned chancellor — one of the ablest and most accomplished judges who ever adorned the bench in Mississippi. That one relates merely to the failure to enter personal decrees for the cross petitioners, the amounts due all of whom were agreed upon, and some of whom specifically asked personal decrees, and others
The decree is affirmed in all things else, but as to this is reversed, and decrees will be entered here for the amounts agreed on.