Tarver v. Roffe

GOLDTHWAITE, J —The subject of voluntary conveyances by debtors, has been recently, so fully discussed, and so often examined, by this Court, that the case before us may be determined by a brief reference to principles, considered as already established. The first inquiry here is, as to the object contemplated by the grantor, hU making this assignment. From the recitals of the deed, we ascertain, that the persons named as the third parties, as well as the trustee, are sureties for the grantor, either for debts due at the execution of the deed, or then running to maturity. The professed object is to indemnify and secure these sureties, but the debtor stipulates that none of them except Tar878 ver, shall hqve a remedy under it, until they have advanced their own money for his indebtedness. This certainly is a singular provision — but, if they have assented to it, the provision itself furnishes no ground to declare the deed void. As sureties at law, they can scarcely be said to have any rights at law, unless that of calling on the creditor to put his demand in suit— Clay’s Dig. 532, § 6 — that of having a judgment rendered in his favor against the principal when sued without him; — Ib. § 8 ; and that of requiring the sheriff to levy first on the property of the principal when both are sued, (lb. 206, § 23,) are so to be considered. In equity, his ouly redress seems to be by suit to compel a payment. [1 Story’s Eq. § 327, and cases there cited.] It is evident that in none of these modes, does the surety acquire a specific lien upon the estate of his principal, until a judgment is rendered, or decree passed; therefore when the principal proposes to secure him by a specific appropriation of his property, the terms upon which this shall be made, are as much the subject of stipulation, and assent, as they are between mortgagor, and mortgagee. No objection to the validity of the deed arises out of this stipulation. The question is made as to the period, when this deed became operative, so as to bring it within the influence of the decision of Elmes v. Sutherland, (supra,) — even if the circumstances of the execution by one of the beneficiaries, does not per se, make it operative to the extent of his liabilities. 2. If the contest here was in relation to the personal effects conveyed by the deed, under the imperfect description, to which our attention is called, it would deserve great consideration, whether a creditor not preferred could be affected by it, for no means are afforded by which the property thus described, can be known or separated from other things of the same kind retained bjr the debtor. But this imperfect description, we think, has not the effect to avoid the deed in other respects ; as is it does not necessarily create the presumption of fraud, and even if it did, is capable of explanation by extrinsic proof. It is held in many cases, that whenever a description or designation of the person, or thing intended, is applicable indifferently to more than one subject, extrinsic evidence is [879] missible to prove, which of such subjects was intended. [3 Cowen and Hill’s notes, 1362.] 3. As to the effect of the deed to hinder and delay creditors, in consequence of tying up the property from sale, at the suit of unpreferred creditors, until after a request to sell by the sureties indemnified by the deed, this was very well fully examined in Dubose v. Dubose, supra; where we endeavored to show, that such a consequence did notNesult, as any creditor by suit in equity, might compel a sale, whenever his execution is returned no property. Besides this, if the possession continued with the debtor under the terms of the deed, many cases determine, that this possessory interest is the subject of levy and sale. [Purnell v. Hogan, 5 S. & P. 192; McGregor v. Hall, 3 Ib. 399; Perkins v. Mayfield, 5 Porter, 182 ; Williams v. Jones, 2 Ala. Rep. 314; Bank v. Willis, 5 Ib. 770.] In addition to these remedies, there is another applicable to the principal creditors to whom the debts are due, the sureties to which were intended to be indemnified by this deed. It is held in many cases, that where a surety is indemnified by his principal, the creditor may resort to.' the fund thus appropriated for his indemnity. [Wright v. Morley, 11 Vesey, 22; 2 Story’s Eq. 656, § 639.] Whether a creditor would be entitled to this remedy, without first exhausting his legal remedies against principal and surety, is a subject which we need not examine. We have thus endeavored to show, that this deed is harmless as a means to perpetrate fraud, and the consequence is, that it cannot be pronounced void upon inspection. Judgment reversed and cause remanded. •