Hodge v. Wyatt , 10 Ala. 271 ( 1846 )

GOLDTHWAITE, J.

The deed, under which the plain* tiff in this case makes title, does not declare upon its face, however strong such an inference may be, that the debtor, at the time of its date, was in failing condition, or contemplated immediate insolvency. There is therefore nothing apparent on it to induce a court to pronounce it void per se. It is only when a conveyance is made under such circumstances, and accepted by the croditer with a knowledge of them, that the creation or reservation of a trust becomes fraudulent. [Elmes v. Sutherland, 7 Ala. Rep. 262; Pope v. Wilson, ib. 690; Ticknor v. Wiswall, 9 ib. 305.]

The conveyance is of the same description, and not materially different from that construed by us in Elmes v. Sutherland, where we held, the assent of all the creditors named as cestuis que trust, was essential to the operation of the deed as a.conveyance. A deed of this description must not be confounded with a general assignment for the benefit of all or particular creditors. Such operate, in general, without the express assent of the creditors ; as assent is implied, until the contrary is shewn, in consequence of the benefit which must result to them from the instrument. [2 Story’s Eq. § 1036, a., and cases there cited.] The security offered by this deed, to the creditors, is not necessarily a benefit to them, individually or collectively, because most are required to wait a period for payment more distant than contracted for, and all are involved in the risk of the destruction and deterioration of the property committed to the use of the debtor. Supposing a deed of this nature to be offered bona fide, the chief reason inducing the debtor to this course, must be the delay which he stipulates for, as the use of the property offered as a security, may, in the mean time, enable him to discharge a portion or all of his debts. If only one of the creditors assent, it is evident the debtor has not the benefit which he stipulates for, as the other creditors, by enforcing their demands, may render the reservation of a use of no benefit; and this they clearly have the right to do, as shown by the decision of Dubose v. Dubose, 7 Ala. Rep. 235.

We are not tobe understood that the deed might not be so drawn as to render it valid as a conveyance, upon the assent of one or more of the beneficiaries, if that intention was expressed in the deed, but merely to declare, that as the deed is, the intention, seems clear that the debtor did not intend to give a preference to those only who assented. It then comes within the general rule of mandates, that until the persons for whose benefit they are made, have signified their assent, they are revocable by the grantor. [3 Story’s Eq. 1036, b, 1045-6.] The deed then to the plaintiff being operative only in the nature of a mandate, until after the assent of all the creditors named in it, the levy of an execution previous to this, produced a disposition of the slave in controversy, inconsistent with the authority or power to be exercised by the trustee, and made the power inoperative as to the attaching creditor. [Russell v. Woodward, 10 Pick. 408; Elmes v. Sutherland, 7 Ala. Rep. 263.]

We think the charge of the court below is free from error.

Judgment affirmed.