17 Ala. 549 | Ala. | 1850
On the 4th day of April 1845, George Stone sold to Micajah Young a stock of goods, two wagons, and four horses, for the sum of thirteen thousand one hundred and thirty-four dollars and sixty-six cents, to be paid in three equal annual instalments — the first on the first of February 1846; the second on the first of February 1847, and the third on the first of February 1848. By the terms of the contract, Young had the right to rescind it on the first of January 1846, in which event he was to return to Stone the goods on hand at the timej
1. Although one may be indebted to a larger amount than he is able to pay, yet he may sell his properly, if no liens- have attached upon it, and his creditors cannot defeat the sale, unless it be fraudulent. The contract, however, by which the debtor parts with his property, must be absolute and unconditional, for if he retain the right to revoke the contract and resume the ownership of the property, such a right is inconsistent with a fair,, honest, and absolute sole, and renders the transfer fraudulent ■and void. The necessary inference, says Chancellor Kent, from the existence of such a power seems to be to delay -and hinder creditors. — Biggs v. Murray, 2 Johns. Ch. R. 56-5 — see, also, Lang v. Lee, 3 Rand. 410.
We think it equally clear, that if the-purchaser from an insolvent debtor, has the right to rescind' or annul the contract, before the purchase money is paid, and thus to restore the ownership of the property to the vendor,, that this- right in the pur
2. An insolvent debtor, in the absence of statute law to the contrary, may make an assignment of all his property to pay his
Having attained the conclusion that the deed of trust is fraudulent and void in law, it is unnecessary to examine any other question. The decree of the chancellor is erroneous, and must therefore he reversed and the cause remanded, that a decree may he rendersd according to the equity of the parties, not inconsistent with this opinion.