18 Ala. 301 | Ala. | 1850
Our opinion must be predicated upon the special verdict of the jury, as set forth in the record, for if they have found the facts wrong, an application should have been made to the primary court to set aside their verdiet. Thus considered, the record presents the sole question, whether the deed of assignment made by a debtor in insolvent circumstances to an honest but insolvent trustee, by which such debtor devotes his property absolutely to the payment of his debts, but which was intended by him to delay, hinder and defraud his creditors, can be upheld as against the plaintiff in attachment, the creditors provided for in said deed never having given their assent to, or claimed any benefit under it. The solution of this question depends upon whether we must presume that the creditors will assent to the deed, and upon the further inquiry whether such assent, either presumed or actual, would make it available as against the plaintiff, who has acquired a lien upon the property, prior to any actual assent.
The doctrine held by this court, in regard to presuming the assent of creditors, is, that such assent will be presumed where the assignment is for their benefit — (Kinnard v. Thompson, 12 Ala. 491; Gazzam v. Points, 4 ib. 374) — but such assignment will not be considered beneficial, unless the deed devotes the property absolutely and under all circumstances to the payment of the debts secured — (Dubose v. Dubose, 7 Ala. 235; Allen v. Montgomery & W. P. R. R. Co. 11 Ala. 437) — nor where it provides for the delay of the creditors secured to be paid.— Lockhart v. Wyatt, 10 Ala. 231; Hodges v. Wyatt, ib. 271. But these principles do not affect the case before us, and we feel confident that no case has been decided by this court where the question here made was involved.
The statute expressly declares all conveyances made to delay, hinder, or defraud creditors, “ to be clearly and utterly void.” — Dig. 254, § 2. The jury have found this conveyance to be of that character, and we must pronounce it void, unless those claiming under it can bring themselves within the exception mentioned in the statute — unless they be bona fide purchasers for valuable consideration. Now we concede, as has often been decided, that a creditor, to whom a debt is justly due, may obtain a conveyance from his debtor for its security, and without parting with the evidence of his debt, or extending the
We have been unable to find any case, and the learned counsel has refered us to none, which would warrant us in pronouncing in favor of this deed, unless the case of Brooks v. Marbery, which was twice before the Supreme Court of the United States, (see 7 Wheat. 556; 11 ib. 78,) may be considered an authority in favor of it. I think, however, that that case has been unwarily perverted by those courts, which have applied the principle settled by it to conveyances declared fraudulent under the statute of 13 Eliz. To state that case in the strongest light, the deed was made by the grantor and accepted by the trustee, each of them influenced to execute it by the hope that they would thereby suppress prosecutions against the grantor for forgery, which it was feared the prefered creditors would set on foot. The creditors had, neither directly nor indirectly, concurred in the fraudulent or unlawful intent, which moved the grantor and trustee to its execution; and their acceptance of the deed could have no operation in effectuating the design of the grantor. The deed in such case could be a valid security, and the creditors the bona fide recipients of its provisions, whilst the unlawful purpose of the grantor would fail of its object and remain as innocuous in his bosom as though it had never been conceived. To make that a parallel case with this, let us suppose that the acceptance of the deed effectuated the intention of the grantor, would Chief Justice Marshall have hesitated to declare such conveyance utterly void, and that the creditors’ assent should never be presumed, when the effect of such assent would be to stifle prosecutions for offences against the criminal laws of the country ? In cases arising under the statute relating to fraudulent conveyances, the deed being made to delay, hinder, and defraud creditors, the acceptance which validates the deed gives effect to the fraudulent intent. Not so in the case of Brooks v. Marbery. Now while the law will not deprive a creditor who in good faith, and without notice of the grantor’s fraudulent design, has obtained a security for his debt, of the benefit of that security, it is not so regardless of every principle of sound public policy, and so destitute of morality, as to hold out such fraudulent deed as a premium for the accep
Our conclusion is, that the deed, upon the facts found by the jury, is void, and that the demand due from the garnishees to Davidson is liable to the plaintiff’s garnishment.. The judgment of the Circuit Court is therefore reversed, and the cause remanded.
Note by Reporter. — On a subsequent day of the term at which the above opinion was delivered, the plaintiffs in error moved the court to amend its judgment so far as to render it here, instead of remanding the cause to the Circuit Court for further proceedings, to which the court made the following response:
I was of opinion, when the decision of this case was made, that the correct practice required us to render the judgment here, which the Circuit Court should have rendered upon the verdict; but my brethren think the practice,-settled in Edmonds v. Edmonds, 1 Ala. 401, should be adhered to, and therefore hold that this cause should be remanded. In my view, the practice of remanding in such cases is in violation of the statute, unnecessarily prolongs litigation, and is opposed to the practice of this court in respect of other cases, between which and this, no sensible distinction can be made.