Kinnard v. Thompson

GOLDTHWAITE, J. In Elmes v. Sutherland, 7 Ala. Rep. 262, we adverted to the distinction supposed to exist between a security executed concurrently with the creation or extension of a debt, and a voluntary conveyance by the debtor made for the purpose of inducing his creditors to give him delay, and held the latter was to be considered only the grant of a power which was revocable by the debtor, until the conveyance was accepted by the creditor. In the subsequent cases of Lockhart v. Wyatt, 10 Ala. Rep. 231, and Hodge v. Wyatt, Ib. 271, we held the power granted by such a deed was destroyed, when a levy was made before the assent of all the creditors was given ; but in all these cases, it was clear from the deed, the debtor intended it to operate as a conveyance, only upon the event the delay stipulated for was given. The difference between the case at bar and those referred to, consists in the facts, that no delay is stipulated for by the debtor, and that the property conveyed is absolutely, and under all circumstances, devoted to the payment of the specified creditors. In this respect, it strongly resembles the cases of Dubose v. Dubose, 7 Ala. Rep. 235, and Allen v. Montgomery and West Point Rail Road Co., December Term, 1846, when similar deeds were sustained against subsequent execution creditors. The decision of Dole v. Bodman, 3 Metc. 189, to which our attention is called by the defendant, proceeds on a doctrine which, however well established in England and in the courts of Massachusetts, has been repudiated in this court as well as in most others of the Union. The rule with us, is, that the assent of the creditor will be presumed when the assignment is for his benefit. [Robinson v. Rapelye, 2 Stewart 86; Gazzam v. Points, 4 Ala. Rep. 374; and is the same in the supreme court of the United States—Brooks v. Marbury, 11 Wheat. 73; Tompkins v. Wheeler, 16 Peters, 139.] We do not question that Robbins, although secured by the deed, might refuse to accept its provisions; but his doing so cannot affect the rights of the other creditors, for whose benefit, as well as for his the deed was made. The [492] deed is not of that class which requires the assént of all the creditors named in it before it becomes operative as a conveyance, but is valid and operative from its execution, in consequence of the presumption of assent arising from its being beneficial to the creditors, to whom the property conveyed by it is devoted. It being, admitted the deed is bona fide, we think it clear the court erred in charging the jury it was the mere grant of a power, which the levy of Robins’ execution defeated, Judgment reversed and cause remanded.