Planters & Merchants' Bank of Mobile v. Clarke

COLLIER, C. J. — 1. In Richards v. Hazzard, 1 Stew. & P. Rep. 139, the deed assigned all the property of the debtor to a third person, in trust for certain creditors, reserving to the grant- or the sum of two thousand dollars per annum, for the support of himself and family, during the continuance of the trust. There was then a provision appropriating the residue of the debtor’s estate to the payment of his creditors generally. The Court said, “ That by reason of the reservation contained in the deed, it must be considered fraudulent and void, as against [770] the sound policy of the law, and against the statute of frauds, being obviously made with intent to delay, hinder or defraud creditors of their just and legal actions.” In the case before us, the deed does not stipulate for a benefit to the grantor. It expressly provides that the trustee shall take possession of and hold the property conveyed, and the profits, &c., until the sale thereof, or until the grantor shall pay the debts intended to be provided for, or counter-secured. It is not absolutely agreed that the grantor shall have the possession or control of the property, but merely that the trustee, if he think proper, shall permit him to reside upon the plantation and have the management thereof, under the trustee’s supervision, until the growing crop shall be sold. Here it must be observed is no stipulation binding upon the trustee, but leaves it to his discretion whether he will permit the grantor to reside upon the plantation and manage the crop in subordination to his authority. If the deed had been silent upon this point, it would doubtless have been competent for the trustee to have employed the grantor as his agent in guiding the operations of the farm, or in performing some other duty incident to the trust, without affecting in any manner the validity of the deed, or the security which it afforded to the cestuis que trust. Can then,a provision, which possesses no potency in itself, and which cannot, in the slightest degree, change the operation of the deed, stamp it with the impress of fraud, or impair its legal efficacy ? The deed was executed after the crop for the year must have been planted, and it might have been for the interest of the beneficiaries that the grantor should have been permitted to continue his residence upon the plantation, and direct the operations there; especially if he asked no remuneration for his services. In Ashurst v. Martin, 9 Porter, 566, the deed purported to be a conveyance of the estate of the debtor, in trust to pay creditors, and contained, among others, a stipulation that the trustee should not be responsible for the acts of his agents, nor be charged for any moneys except such as should be actually received by him. It was held that this provision did not make the trustee irresponsible for any agent that might bo selected by him, but only for such as were “ necessary to enable him to execute the trust, selected in good faith, [771] with a due regard to their fitness, and a proper supervision exercised over them.” This being the case, the appointment of even the debtor himself would not defeat the trust estate, and consequent right of preferred creditors. The same result would follow, although the agency might be a source of profit; for if the deed does not, (as we have seen,) secure it to the grantor, no post factum act, in which the beneficiaries did not participate, though under some circumstances it might be construed a fraud, would divest their righjs. 2. The deed does not convey the corn and other provisions, which the grantor had in store at the time it was executed, but the crop of corn, &c. then growing; but if it did, it could not affect its validity. In Ravisies v. Alston, 5 Ala. Rep. 297, the deed conveyed lands, slaves, mules, horses, plantation utensils, &c. with the right to sell and dispose of the crop to be grown during the current year, to pay the debts secured. We said, “ The corn, fodder, bacon, &c. were necessary to provision the plantation, and to the making of the crop, for which purpose, and not for the use of the grantor, they are reserved in the deed. These articles, though destroyed by the use, during the year, would not be converted into money, but would be reproduced by the cultivation of the plantation. How far it might be allowable to extend assignments of this character, or whether they could continue beyond a single crop, it is not necessary now to determine, but within that limit, and with the power given by statute to every creditor to pay the debt secured by the deed, and substitute himself to the condition of the preferred creditor, it does not appear to be liable to abuse.” The case cited from 4th Yerger is noticed in Ravisies v. Alston, and shown to be distinguishable from it. In respect to the growing crop of corn, &c., it may be remarked, that, when gathered, it was not necessarily to be consumed on the plantation, but when the state of things existed, which authorized the beneficiaries in the deed, or any one of them to demand a sale, it was within the power and discretion of the trustee to sell the corn, &c., instead of other property, where a sale of all was not necessary. And if no sale was demanded, so that it was proper to keep the slaves, &c., on the plantation, humanity and law require that they should be fed; in fact their labor could not be profitable unless their wants [772] were supplied 3 under such circumstances' we can conceive of no objection in thus appropriating the provisions grown on the farm. The imputation of fraud founded on this ground, is gratuitous, when it is recollected that what is consumed is necessary to the subsistence of the slaves, mules, &c., and is paid for, not only by the reproduction of other provisions, but of something else for market. The possession and employment of the property by the trustee, was not under the deed, necessarily to continue longer than the then current year. The provision, in respect to a sale, might or might not be executed sooner, depending to a great extent, upon the promptness with which the creditors of the grantor, whose demands are mentioned in the deed, might attempt to enforce them. 3. In providing that the estate of the grantor shall not be sold, until the property of his sureties and indorsers were levied on by executions on judgments obtained against them, the deed is not obnoxious to the objection of being made to “ delay, hinder or defraud creditors,” in the legal sense of those terms. This conclusion is the clear result of previous adjudications, with which we are well satisfied; among which are Tarver v. Roffe, and Dubose v. Dubose, at this term. The judgment of the Circuit Court is consequently affirmed.