Stanley v. Bunce

| Mo. | Jul 15, 1858

Napton, Judge,

delivered the opinion of the court.

We do not perceive any thing in this case to distinguish it from that of Brooks v. Wimer, 20 Mo. 503" court="Mo." date_filed="1855-03-15" href="https://app.midpage.ai/document/brooks-v-wimer-7999503?utm_source=webapp" opinion_id="7999503">20 Mo. 503, and several other cases deciding the same principle. In this case of Brooks v. Wimer, the grantor conveyed a stock of goods to a trustee for the benefit of certain creditors named, but reserved the right to himself to sell the goods in the usual course of his business until default made in the payment of some debts secured by the deed. This instrument was declared void on its face because of the reservation of the right of disposition without accountability. It was held a conveyance to the use of the person making it within the meaning of the first section of an act concerning fraudulent conveyances. In the case of Walter v. Wimer, 24 Mo. 62, the assignment contained a similar provision, but the grantor also agreed faithfully to apply the proceeds of his sales towards replenishing his stock, and made the now stock thus acquired, as well as the old, subject to the trust. This additional provision was however held to make no difference ; the deed was held void.

In the present case the same provision is found, not perhaps in lime verba, but it is just as necessary and natural an inference from its terms as if it had been so declared in the precise language of the deeds referred to in the cases cited. In one of the deeds (they are both substantially alike) Norris conveys bis present stock of goods, and also “ all goods, wares and merchandise which the said Norris may at any time within twelve months purchase for the purpose of renewing’ or replenishing said slock” There is also conveyed all his bonds, notes, accounts, &c., then on hand, and “ also all such as may be created at any time within one year from the date of these presents.” The condition of this conveyance was, that whereas the beneficiaries were securities for Norris and “ had agreed to become the sureties for said Norris from time to time for the next ensuing one year not to exceed ten thousand dollarsthen if Norris saved them harmless from these liabilities, already incurred or hereafter incurred, the deed was to be void; but in the event that any of them was compelled to pay any liability incurred in this way, the trustee was authorized to proceed to sell, &c.

The intent of this deed was, that Norris should retain possession of his goods and proceed with his business as a merehant. It was impossible for Norris to renew or replenish a stock of goods under the control and in possession of a trustee. It was equally impossible for him to create new debts, accounts, &c., under such circumstances. The ces-tuis que trust contemplated the probability of being called upon to endorse additional notes in the course of the year and provided for this contingency; all of which could have proceeded on no other supposition except that Norris was to continue his business. The trustee could, on certain contingencies, take possession, just as was provided in the deeds in Brooks v. Wimer, and Walter v. Wimer; but until this contingency happened, he had no right to the possession under the deed, and no creditor outside of the assignment could touch the property. It was completely locked up against all the world, except the creditors named in the assignment and Norris himself, and he could dispose of and make a good title to every dollar of the property. All this appears upon the face of the deeds. It is not a question of fact or intent arising from any thing outside of the deeds, but is the natural, indeed we think the only, interpretation to be put upon the deeds themselves. The case, then, falls within the principle heretofore decided; and the judgment of the circuit court must be affirmed.

Judge Scott concurring.