Brown v. Lee , 7 Ga. 267 ( 1849 )

By the Court. —

Nisbet, J.

delivering the opinion.

[1.] In a well considered case, determined at Americus, in 1847, this Court held, that “ if an insolvent debtor assigns his property, to one or more persons, in trust, for the benefit of a portion of his creditors, to the exclusion of the rest, such conveyance is null and void, by the Act of 1818.” Ezekiel vs. Dixon, 3 Kelly, 146.

That is this case — an assignment in trust, by a debtor, who is insolvent, to pay one class of creditors first, and then to pay all others. A preference is here given to some, over other creditors, by a trust assignment. This, the assignor cannot do. He may prefer creditors by a direct sale to them, in extinguishment of their claims, or he may bona fide sell his property to a stranger, and apply the proceeds to the debts of favored creditors; but he cannot discriminate, in a trust deed, between creditors. The ingenious counsel for the plaintiff in error, has failed to distinguish this case from that of Ezekiel and Dixon. This deed is void, under the Act of 1818. Whether it is or not, is'the only question made in this record, although another was argued.^*

Let the judgment be affirmed.

* Note. — See post, No. 52, Lee et al. vs. Broten, et al. — [Rep:]