Selleck v. J. Pollock & Co. , 69 Miss. 870 ( 1892 )

Campbell, C. J.,

delivered the opinion of the court.

In Mattison v. Judd, 59 Miss., 99, we held that a direction in the deed of assignment to pay the just and proper charge of counsel for services about the assignment, was harmless as a ground of attack on it. In the same case it was said that a stipulation for the payment of counsel fees, which the assignors might thereafter become liable for in any litigation growing out of the assignment, would avoid it. The distinction is between counsel fees for services in making and maintaining an assignment, which may be provided for by an assignment, by including a proper fee earned by services rendered in making it, and by expressly authorizing the doing by the assignee of what he could do if nothing was contained in the instrument on the subject.

The provision for paying the fee earned is proper, and the express authorization to the assignee to employ and pay couusel for defending the assignment against attack in the courts is harmless, since he has that power anyhow. "The clause of the deed of assignment in that case as to counsel fees was of doubtful interpretation, and the doubt was resolved in favor of the validity of the stipulation.

In the present case, considering the instrument for the security of the counsel fees as part, of the assignment, as we must, we are confronted by the question whether a preferential assignment may provide for the payment of -counsel fees, to a fixed amount, for services to be rendered in future by a particular attorney, absolutely and unconditionally, whether his services are necessary or not. The most favorable view of the case for the validity of' the assignment, presents this precise question. The instrument is assailed as providing for the payment of counsel for future services to the assignors personally. It is defended on the ground that the provision for counsel fees had reference only to the maintaining of the assignment, and this is probably the true view of the facts. The fee was not wholly for past services or services then completed. It had some relation to the future. Services to be rendered for the assignors in maintaining the assignment, constituted a factor in making up the amount of the fee. How large an element this was cannot be known, but it is indisputable' that it was one. The fifteen hundred dollars were not for what was done and completed when the assignment was drawn. It was contemplated that future service was to be rendered, and, as it was uncertain what of this might be required, it was estimated for, and liberal provision was made for contingencies. This is, no doubt, the very truth of'the case, for on no other theory can all that the record contains be explained creditably to the persons concerned. We are satisfied that no wrong was intended by any of the parties, and that they did only what they thought was proper and that they had the right to do.

The question is, did they have the right to do what they did? By the provision for payment of $1,500 for counsel fees, that sum was absolutely withdrawn from creditors, and devoted to the payment of the attorney. It was to be paid at all events, whether he was called on for any future service •or not; it is a fixed sum, not dependent on any part of it ■being earned hereafter, and payable as if past due. It cannot be said that it was properly payable as a fee for past •services. That would not be true, and the parties did not so •consider. It must be regarded, as the parties regarded it, as binding the attorney to render any future service which might be required, not by the assignee (for the. attorney told ■him he was not to serve him), but by the assignors, in case .any question was raised as to their honesty and good faith in the transaction. Assuming, as we do, that this was to uphold and maintain the assignment, by vindicating the good -faith of the assignors, and thus inure to the assignee, whose -duty it was to defend the assignment, and whose title depended on the good faith of the assignors, we must pronounce the stipulation inadmissible and. vicious to the extent of inwalidating the assignment. It is the dead fly in the ointment, ■tainting and destroying the whole. It causes this otherwise unobjectionable assignment, to fall below the high standard -prescribed by the courts for transfers of this kind.

A failing debtor may devote all he has to pay a favored •creditor. He may buy property from one, and, before paying for it, may transfer it to another, and prefer him at the expense of the wronged creditor, whom he owes for this very property. A debtor*may prefer his creditor by selling property, or by confessing a judgment, or by giving him a moi’tgage, and, in such mortgage, he may stipulate for time and for retention of possession and control of the mortgaged property. He may sell all he has to pay his wife, and then devote his entire time and labor to her service as against creditors, however meritorious. Great indulgence is shown to special .and particular arrangements, whereby a debtor secures his -creditor, but when one undertakes to make an assignment for the benefit of creditors, a higher standard is erected; and if preferences are ventured on in this form, great strictness prevails — so great as to make any such attempt extremely hazardous, as the many wrecks strewn along this route attest. It is like the garden of Eden, where all was free for use except one tree, eating whose forbidden fruit was attended by dire calamity.

It seems probable that the idea of the courts as to general assignments for creditors was derived from the dealing with the luckless Ananias and Sapphira, who, having undertaken to sell their possessions and bring the proceeds to the common treasury, after selling their land, reported only a part, and withheld the balance of the money received, with terrible results to both, as recorded in Acts v. But the serious consequences of any withholding of part, or other deviation from the allowable course in making an assignment, is not made to fall on the assignors, as the punishment of their hypocrisy did on Ananias and Sapphira, but it is visited on innocent creditors, who, for some mere error of judgment on the part of the drawer of the assignment, or inadvertence it may be, or other trivial circumstance with which they have no connection, are deprived of the provision their debtor has made for them, and, instead of reaping its fruits, are made to witness its enjoyment by the unpreferred creditor, who successfully attacks the assignment, for a very small fly in the jar of ointment, and, having made that the point of his successful assault, appropriates all to the satisfaction of his own demand, to the loss and chagrin of the other creditors.

Like the moral law in its entirety, which, broken in the least is broken throughout, an assignment, however meritorious in the main, however free from censure in its chief provisions, however perfect except in some small particular, is condemned for that. Like some beautiful design in art, marred by but a single blemish, its perfections are all'merged and lost in that which causes its rejection. For all else except assignments there is toleration and some indulgence. For them there is no dispensation of grace, but the terrors of the stern and rigorous 'law ever confront them. And under this relentless and rigorous rule, this assignment must fall.

Affirmed.