Hindman v. Dill & Co.

GOLDTHWAITE, J. In view of the numerous decisions of this court on the subject of fraudulent conveyances, it is impossible to sustain the charge of the circuit court, that this deed' is fraudulent -upon its face. It may be conceded, the' deed admits the grantor to be in failing circumstances, but [691] this of itself cannot destroy his legal right to prefer a creditor. [Robinson v. Rapelye, 2 Stew. 86; Ashurst v. Martin, 9 Porter, 173.] Nor is the reservation of what may remain after paying the preferred debt a trust for the debtor’s use, within the meaning of those decisions which avoid the deed when such a use is reserved. It is rather the declaration in terms, of what would otherwise be the legal effect of the deed without a clause to that effect. [Johnson v. Cunningham, 1 Ala. Rep. 262; Elmes v. Sutherland, 7 Ala. Rep. 262; Dubose v. Dubose, Ib. 235; Pope v. Wilson, Ib. 690; Graham v. Lockhart, 8 Ib. 9.] We have had our attention called to the recent decision of Goodrich v. Davis, 6 Hill, 438, in which it seems to be considered that a deed like this, in New York, is fraudulent per se. That conclusion was doubtless controlled by the statute law of that State, which declares a deed void if it reserves a trust for the use of the person making it. We are not prepared to say, that under the. circumstances disclosed in that case, we should have considered the trust as one for the debtor’s use, but however that may be, it is certain that here, without any particular statutory declaration, such a reservation of a personal use, or even of a right to lead the use, would avoid a deed assigning all the debtor’s property. [Gazzam v. Poyntz, 4 Ala. R. 374.] We think there is nothing on the face of this deed which authorizes a court to pronounce it void. Judgment reversed and cause remanded.