Shearer v. Loftin
26 Ala. 703
Ala.
1855
Check Treatment
CHILTON, C. J.

—According to the record, as amended by the agreement of the counsel, if 'we concede that all the deeds made by Loftin are valid, the complainant is entitled to an account, so as to ascertain the residuum which may remain after satisfying the liens created by those deeds, and for which he should have a decree. We do not think the jurisdiction of the court is limited to the condemnation of the property seized under the writ of attachment; but if its jurisdiction has once rightfully attached,' the court may render it effectual to the party’s relief, by sending out its process, upon a proper application, or widening the sphere of its action, so as to embrace and subject property enough to satisfy the complainant’s demand,

*7152. We do not concur with, the counsel for the appellant, that the deed of 17th April, 1850, from Loftin to Saunders, trustee, should have been signed by all the beneficiaries, to render it valid. Although it purports to be tripartite, and is signed by Deloach, one of the beneficiaries, there is nothing upon the face of it which shows that it was to be inoperative until signed by the other beneficiaries. It cannot be distinguished from many other cases, which have been passed upon by this court, holding that neither the trustee, nor the beneficiaries, are required to sign the deed to give it effect.

3. It is needless, under the view we take of this case, to decide whether it requires the assent of all the beneficiaries to the provisions of this deed, to vest the title in the trustee, and cut off the grantor’s right of revocation, for we feel satisfied, that under its peculiar provisions, nothing short of the express assent of a majority in interest of the parties provided for, could render the deed available. The trustee has no power to execute the trust by a sale of the property, until directed by such a majority, or by all the beneficiaries.

4. We cannot presume the assent of the beneficiaries to this deed. It postpones debts for which all the beneficiaries are liable, for several months after they fall due. True, it provides for the .payment of two demands, for which one of the beneficiaries (Duren) is liable, before they fall due ; yet he is postponed for a large .sum, and' we cannot presume that it was beneficial to him to be deprived of resorting to this property in satisfaction of demands due when the deed was made, for the provision, more or less contingent, made for the security of those not due. Although the grantor may have embraced all his property in this deed, it is nevertheless, as appears on its face, a deed of trust, reserving to himself the right of redeeming the property by a given time, which right will continue until the trust shall have been executed. That the deed does not postpone the creditor’s right to sue on his demand, is not material under the circumstances here presented ; for, practically, there can be but little difference between denying the right to sue, and depriving him of all moans of satisfying his judgment in the event his suit should result in one in his favor. Aside, however, from the postponement of the creditors, and reserving the right of redemp*716tion, we could not assume that the provisions in this deed would prove beneficial to any of the parties, taking into consideration that all the property of the grantor is conveyed, with the right of a majority in interest of the beneficiaries to say when it shall be sold. We cannot assume that the property in the deed will pay all the demands mentioned in it, and this litigation is very persuasive to the contrary. Suppose it falls short; the preferred creditors may say, we will not accept, because, having no power to order a sale, we may bo postponed by a majority in interest to an indefinite period; for the interest of those whose claims would bo left unsatisfied by a present sale, would prompt them to wait until the appreciation of the property from its natural increase, or rise in value in the market, or the rents and profits of it under the control of the trustee, would make it pay their demands — and thus, for the benefit of a majorit}r in interest, they are made to incur the risk of its depreciation, and compelled to submit to this delay. The majority may say, if wo assent, others are preferred before us, and the effects may be exhausted before our claims can be reached ; whereas, by dissenting, the deed cannot be valid, because it provides that a majority in interest shall concur in ordering a sale— thus all the creditors shall be placed upon an equality. Thus it is that no legal presumption of assent can be indulged, because the court cannot see that the provision would be beneficial to a majority.

We would here take occasion to remark, that deeds containing provisions of this character, embracing all the grantor’s property, and providing for the right of redeeming on the part of the grantor, may readily be made instruments of fraud on the part of the grantor in delaying and hindering the collection of his debts, by presenting alternatives requiring their acceptance, and making the interest of each so operate upon that of the other as to work very groat delay. Had the deed, in this instance, provided that those who should assent to it should take, and should have power to direct the execution of the trust, although a majority in interest should decline accepting, it would have been to the interest of all parties to have accepted, because of this adroit provision that a majority in interest could control the sale. The preferred *717minority would accept, because, on tbeir failure, the majority would ■ take and exhaust the property; and the minority having accepted, the majority must accept, because, if not sufficient to satisfy all the demands, or to reach theirs after satisfying the minority, they can have the property held up and thus avail themselves of the chances of its appreciation as above shown. Thus the grantor obtains all the indulgence he desires, all the while having the right to redeem, and exempting his property thus tied up from liability to his other creditors. Whether such a conveyance can be supported may well be questioned, and we leave it an open question, since the facts of the case before us do not involve it.

Coming next to the facts of the case, we are satisfied they do not show that a majority in interest of the persons provided for assented. Duren and the complainant constitute such a majority, and it is very clear that neither of them had assented before the bill was filed. Duren says, in his answer, that he looked to the deed for indemnity, &c., — spoke of it publicly, &c.; but he no where says that he notified the trustee of his acceptance.' Indeed, the evidence of Maury clearly shows that he was making preparation to assail the deed by filing a bill after the complainant’s bill was filed, and that before that time he had requested said Maury to consult an attorney in his behalf, who did so, and reported the result. We think it clear, from the whole record, that he did not accept by notifying the trustee before Shearer’s bill was filed; and this being an affirmative fact, he should have shown it, if it existed. Indeed, his answer assumes that he did not deem such notice essential. But, without it, the trustee does not become his bailee- — he is vested with, a power subject to revocation, and which is revoked by the attaching creditor who acquires a lien. — See the cases on the brief, especially Lockhart v. Wyatt, 10 Ala. 235.

The deed then of the 17th of April, 1850, of Loftin to Saunders, must be regarded as interposing no obstacle to subjecting the property to the satisfaction of the complainant’s demand.

Let the decree be reversed, and the cause remanded, to be proceeded in as above indicated.