Reynolds v. Crook , 31 Ala. 634 ( 1858 )

BICE, 0. J.

— From the bill and exhibits it appears, that in February, 1854, Samuel P. Hudson was appointed guardian of five children of a decedent, all of whom were under fourteen years of age; that he entered into bond, with-the complainants — four in number — ’as his sureties, in the penal sum of twelve thousand dollar’s, conditioned for the performance of .his duties as such guardian; that on the 18th day of April, 1855, he “ became embarrassed in his circumstances, and, being desirous of indemnifying and saving complainants from any loss as his sureties as aforesaid, executed for that purpose a deed of trust,” which was duly recorded on the 21st of April, 1855, and a copy of which is set forth in exhibit B to the bill; that on the 10th of May, 1855, Walker .Reynolds recovered a judgment in the circuit court of Talladega, for $4596 95, besides costs of suit, against Moore, Terry, Wyly, and the said Hudson, all of whom are respondents; that execution issued under said judgment, and in August, 1855, was levied on all the slaves conveyed by said deed; that at the filing of the bill, in September, 1855, Hudson was “largely indebted and embarrassed in bis pecuniary circumstances,” and had “made several deeds of trust for the security of his creditors, by which he had conveyed all his property, both real and personal, to provide for the payment of his debts; and that tlie property so conveyed was not more than sufficient to pay tbe debts thus secured,” and complainants “knew of no means or property belonging to said Hudson to which they could look to indemnify themselves against their liability as his sureties on the said guardian bond, except the property onveyed for that purpose” by the deed of trust set forth in exhibit B to the bill. The complainants found their right to relief upon the deed of trust last above mentioned, and pray for an injunction to restrain further proceedings under said levy; and that the indemnity, which they allege was designed for them by said deed, may be secured to them against said levy, &c.

The deed on which complainants here rely purports to provide indemnity for them, as the sureties upon said guardian’s bond, by conveying twelve negroes-four women and eight children — therein described, to L. W. Cannon as trustee, upon certain trusts therein expressed; the first of which is, that the said negroes are to remain in the possession of the grantor, (the said Hudson,) not only until he shall commit a breach of his said guardian’s bond, and shall fail to save his said sureties thereon harmless, but afterwards and until “ his said sureties, or their agents or attorneys, shall request the said L. W. Cannon in writing to proceed in the execution of the trust ” reposed in him by the deed.

We do not doubt -that a valid conveyance of personal property, to provide indemnity for the sureties upon a guardian’s bond, may be made. — Code, §§ 1283, 1291; Frow v. Smith, 10 Ala. R. 571; Hopkins v. Scott, 20 ib. 179; Hawkins v. May, 12 ib. 673. But, under section 1550 of the Code, which declares void, as to the creditors of the grantor, every conveyance of goods, chattels or things in action, made in trust for his use, — it is essential to the validity of a conveyance of chattels, to provide indemnity for sureties on a guardian’s bond, as against the credititors of the grantor, that, at least, its whole purpose should be the devotion of the property bona fide to the indemnification of the sureties. If a part of its purpose is, that it shall avail or be used for the ease or favor of the grantor, it is void as to creditors. A provision in it, by which a sale is unreasonably postponed, and the grantor in the meanwhile to retain the beneficial enjoyment of the property, denotes a part of its purpose to be to secure a benefit to him. And an unexplained stipulation in it, for possession of twelve slaves by the grantor, not only until he should violate his duty as the guardian of five children under fourteen years of age, commit a breach of his guardian’s bond, and fail to save his sureties thereon harmless, but afterwards and until his sureties, (four in number,) or their agents or attorneys, should request the trustee in writing to proceed in the execution of the provisions of the deed, — is an express trust for the use of the grantor, within the meaning of section 1560 of the Code, and renders the deed void as against his creditors. Such a trust is expressed in the deed on which the complainants here found their right. If it had not been expressed, the law of this State, as it hath, been since the Code went into effect, would not have implied it from the other provisions of the deed. And as it is expressed, the law, as it existed when the deed was made and now exists, wall not tolerate it, when assailed by the creditors of the grantor. The nature and provisions of the deed now under consideration are materially different from those of the deed passed upon in Miller v. Stetson, at present term. — See Hodge v. Wyatt, 10 Ala. R. 271; Lockhart v. Wyatt, ib. 231; Grimshaw v. Walker, 12 ib. 101; Hardy v. Skinner, 9 Iredell, 191; Hafner v. Irwin, ib. 490.

It follows from what we have above said, that upon the facts stated in the bill, and the provisions of the deed on which the complainants found their claim to relief, the deed is void as against the creditors of the grantor; and that the chancellor erred in not sustaining the demurrer to the bill for want of equity. The decree of the chancellor is reversed, and a decree must be here entered, sustaining the demurrer, and dismissing the bill for want of equity. The appellees must pay the costs of this court, and of the court below.