78 Tenn. 229 | Tenn. | 1882
delivered the opinion of the court.
On the 30th day of May, Í865, Haynie Thompson and Son, Samuel P. Thompson, executed a deed of trust for the benefit of creditors to Peter Tribble and Matt. N. Thompson, trustees, which deed was duly registered and the trustees accepted the trusts, and entered upon the discharge of the duties imposecf upon them. The property conveyed consisted of real estate, personal property, and choses in action; composed of farm lands, live stock of all kinds, wagons, buggies, household and kitchen furniture, corn, bacon, and provender, judgments and notes, etc. The deed contains the usual covenants of title which is followed by a clause as follows: “ But this assignment or deed of trust is made for the following purposes, that is to say, we are indebted to divers persons, and the said
The deed then proceeds: “We are indebted to other creditors, to-wit,” here naming several, and concludes with this clause: “And if there are other debts not mentioned, they are to be paid by the said trustees equally and ratably, out of the proceeds of the property above mentioned after the payment . of the deb's specified in the first class.” If the debts mentioned were not paid by the 1st of October, 1866, then the trustees were to proceed to sell the property at public auction. The trustees were empowered to sell the personal property
The trustees were also to fatten the hogs with the corn now on hand, ready for the fall market; and also to put in order such other stock as thej deem advisable for market, and do all other things that will promote the interest of all creditors.
The trustees. realized $34,995.32 from sales and otherwise. The creditors of the second class, on the 4th of September, 1873, filed their bill against the trustees for discovery and account, which was answered. And on the 20th day of October, 1874, the trustees filed a cross-bill to have the deed reformed, so as to have a debt owing the.. Bank of Tennessee for $4,000, due November 23, 1861, upon which both trustees were endorsers, and one due Hearn for -$200 due March 1, 1860, with a credit of March 2, 1860, for $75, upon which as endorser or surety -was the trustee, Thompson, declared to belong to the first class, and that they be permitted to pay them, as such.
The chancellor dismissed the cross-bill, construed the deed of trust, and held that neither the debt due the Bank of Tennessee or the one due Hearn belonged to the first class, but should be reckoned among the debts secured in the second class.
The trustees, it seems, hacl paid the debt of the Bank of Tennessee, paying therefor $1,841,72; they had also paid the balance of the debt of Hearn of $192.50.
This brings up for the decision of this court the following questions:
2d. Upon a fair construction of the deed of trust do the debts of the Bank of Tennesse and Hearn take position in the preferred class?
3d. Should the trustees have been charged interest upon the trust funds not disbursed?
4th. Should the trustees be allowed, in view of the fact, as they claim, that they have increased by their management the trust fund, a greater compensation than five per cent?
At the time the cross-bill was filed to reform the deed Haynie Thompson was dead, and seVeral of the other parties have died pending the litigation.
We do not understand that it is seriously insisted upon that the chancellor under the proof, and. after the lapse of time before filing of the cross-bill, committed an error in refusing the relief prayed for therein.
The argument of the solicitor for the trustees ■ is directed mainly to the construction of the deed of trust, insisting that it indicates a general intention to indemnify the trustees as endorsers and securities; and that the general intent is not to be limited and restricted, to the debts subsequently enumerated, and therefore, the debts of the Bank of Tennessee and Hearn were properly paid, as belonging to the first class. This is denied by the creditors of the second class, who insist that the payment of these debts by the trustees was wrong, and they should be charged with the money they have paid thereon with interest. No case has been cited on either side bearing directly
The court said: “To the schedule then we must look for what is, or is not embraced in the deed, arid we do not conceive that anything more is included than what the schcdrile contains.” In Ely v. Clapp, 16 B. Monroe, 230, the language of the assignment was: “All the goods, wares and merchandise, and property of every name and nature, whatever, of and belonging to the said party of the first part, which will be more fully set forth in an inventory which will be taken hereafter, and in which the property will be described.”
The court said: “The deed conveys all the property of every description which belonged to the grantor. The language is broad and comprehensive and cannot be construed to limit the operation of the deed to such property as should be described in the inventory referred to. The office of the inventory was to describe the particular articles which constituted the property that had been conveyed by the deed. Its failure to contain a full and true description of said property, could not diminish the legal effect of the conveyance.”
To the same effect are the cases cited in 17 N. Y., 478, and 40 N. Y., 471. In the last named case the assignee conveyed the “lands, tenements, and hereditaments, sitúate, etc., and all goods, chattels, merchandise, etc., bills, bonds, notes, accounts, claims, and all property of any name and nature whatever, etc., more particularly enumerated and described in a sched
In view of all the eases cited, and such others as have come under the observation of the court, incline the court not to regard these cases as furnishing an analogy for the solution of the present question. To determine what is the effect of the language of a deed as to the property described generally as regards the property mentioned in, or omitted from the schedule referred to in the deed, is one thing, while the question here is another; and we cannot accept the rule of construction as embodied by the one as furnishing a safe rule for the other, even were the authorities on this subject less discordant than they are.
In cases where the question was what property passed to the trustees, the courts have been led to the consideration of such questions as:’
1st. 'Whether the debtor was making a general assignment of all his property, or only a partial assignment. If the former, the deed was to be construed under the light of that material circumstance.
2d. • In many States the statutes call for a schedule of the property and require it to be filed: Burrell on Assignments, 278. In other cases the courts have been compelled to ascertain whether the schedule was
In this case the trouble does not arise as regards the property conveyed, as in the cases cited. In this case there is no independent schedule of the debts called for in tire deed, nor was it required that there should be. The better rule in all cases is to read the whole instrument and give effect to every part if possible, and thereby reach its true meaning, and not resort to artificial or arbitrary rules until the former rule is exhausted.
Let us proceed to test the writing by this rule. That the assignors desired to secure their near relatives and friends, in every respect, and to fully indemnify them against loss, we have no doubt, the question is, have they expressed this desire in such way, as to make it a part of the conveyance? However much they may have desired to do the thing, yet if in fact they failed to carry out the desire, by reason of inattention to the business on hand, or a failure to recall the debts upon which these parties were endorsers or sureties, for omissions of this character, the court could not make amends, by construction, and now do for them these things, which by reason of ignorance, neglect, or failure of memory, they omitted to do for themselves, quod scriptum est, est scriptum. Does the deed, either generally or specially, place these two debts in the preferred class? That it does not do so specifically, is admitted. Does
We have said, that wo have no doubt that the grantors did desire to indemnify these surities' and endorsers, but a latent desire is of no avail in a contract unless it be made a part thereof and falls under some one of the contractual, directing and practical clauses.
If it- be said that the general clause oí indemnity to the sureties 'and endorser is sufficient to create the preference by implication as in the case of Miller v. Holcombe, 9 Gratton, 665, the court might reply, that the language of the deed- in that case justified the decision because there was no restriction or limitation of the general clause, by the subsequent clauses of the deed, as in this, but a continual enlargement. Here the court is not at 'liberty to make implications from the general language, and declare that ihe gen
It is insisted that the trustees should be charged interest on so much of the trust fund as they used in paying the debts of the Bank of Tennessee and Hearn, and which Thompson retained, making together about $4,000. On the other hand, it is claimed that this should not be done for two reasons:
1st. That the pending attachment suits justified them in retaining sufficient amounts to defray the expenses of defending these, and to pay them in the event they were lost. The sums involved in these suits are about $4,000.
2d. The payment of the debts of the Bank of Tennessee and Hearn involved an innocent mistake in judgment about a matter concerning which judges and lawyers might reasonably entertain different opinions.
The court concedes the justice of the former position and. holds that it was the duty of the trustee to protect the property conveyed to them, by defending the suits and to retain sufficient of the trust fund to meet any debt which might be put upon the land, but do not concede the soundness of the latter in waiting until they were sued, instead of filing a bill to have the trust deed construed.
Without discussing, at length, the power of the court to allow a larger compensation than five per cent to trustees, or indicating in what class of cases it would be proper, we are content to hold that the relation of the trustees in this case to the fund, their personal interest in it would preclude the court from increasing the allowance beyond the sum already allowed by the chancellor. Subject to the modification herein ordered, the decree of the chancellor will be affirmed, and the defendant will pay the costs.