Lockhart v. Wyatt , 10 Ala. 231 ( 1846 )

GOLDTHWAXTE, J.

1. The only distinction between the deed oí trust, under which the claimant in this case made title, and that passed on in Elmes v. Sutherland, 7 Ala. Rep. 262, is, that there, all the beneficiaries were named as third parties, but in this, a portion are included under the description of other persons. This can make no difference in the principle which governs mandates of this description. The proposition of the debtor is, that if the creditors designated will agree to wait a determinate period for payment, and in the mean time allow him to use the property provided for eventual security, then the property and its profits shall be applied at the expiration of the period, to pay the specified debts, unless in the interim, they are discharged by some other mode of payment. If we conceive a deed of this sort, made bona fide, it is difficult to imagine why the assent of all the named beneficiaries is not requisite to make the deed valid as a conveyance. The object of the debtor is, that he shall not be pressed with the specific debts until the period he fixes for their payment. The condition of offering the security is the delay, and the use of the property in the mean time, and it seems entirely evident this object might fail if one or more of the creditors refused to assent, and instead of delay, chose at once to coerce payment. If the object was to convey the property for the benefit of such as might within a fixed period, or within some reasonable time, signify their assent, nothing was easier than for the debtor to so express it; but then it is possible other objections to the validL ty of the deed might arise. We are entirely satisfied with the decision to which we have adverted, and see no reason to change it.

2. It is unnecessary to determine within what period, if there is any, in which the assent of the beneficiary shall be given to a deed of this nature, because however that may be, the levy of an execution, prior to the assent, is equivalent, so far as the execution creditor is concerned, to revocation by the grantor. [Kemp v. Buckley, 7 Ala. Rep. 138; Elmes v. Sutherland, before cited; see also Marston v. Coburn, 17 Mass. 454,]

3. As to the mode by which the assent of the creditors, or those authorised to assent, shall be signified, it will be remembered there is no provision whatever in the deed. The general rule, whenever property is committed to another to hold for the use of, or to deliver to, a third person, is, that such person shall signify to the mandatory his assent to receive it on the conditions of the mandate. [Walton v. Tims, 7 Ala. Rep. 471; Williams v. Everett, 14 East, 582; Scott v. Porcher, 3 Merivale, 652.] In our judgment, there was no error of which the claimant can complain in instructing the jury, that the assent must be signified either to the grantor or to the trustee.

4. We entertain no doubt of the competency of an attorney, when instructed by his client, to do the best he can, either to compound the debt, extend its time of payment, or bind his principal by assenting to an assignment; but the authority to give day of payment upon receiving security, does not seem to be within the ordinary t scope of the duty of an attorney at law. The case Gordon v. Cooledge, 1 Sumner, 537, does not sustain the position contended for, as there the authority was expressly given. We are not called on to decide how far the acquiesence of the principal would affirm the act of his agent, and such would very possibly be the case. Our duty is ended by responding to the questions arising on the charge, and as there is no error in terms, it is useless to consider what is the precise rule in such matters as, from the condition of the case on the main point, no bem efit could arise to the claimant.

Judgment affirmed.