Norris v. Lake

Lewis, P., (after stating the case,) delivered the opinion of the court. [516] A preliminary question has been raised as to the jurisdiction. The appellees insist that the appeal ought, to be dismissed as having been improvidently awarded. But we are of opinion that the decree of the 20th of April, 1891, adjudicates, to a certain extent, the principles of the cause, and is therefore an appealable order. Code, sec. 3454. It decides that the deed is not fraudulent per se, thus overruling one of the grounds upon which relief is prayed for in the bill; and the appeal from that decree brings up all the prior proceedings in the cause. The motion to dismiss must therefore be overruled. The first error assigned is the refusal to appoint a receiver; and the second is that there was error in holding that the deed is not fraudulent on its face. We are of opinion that these assignments are not well taken. The principle relied on by the appellant—viz., that the reservation by the grantor in a deed of trust of a power adequate to the defeat of the avowed purposes of the deed vitiates the deed as to any creditor thereby postponed—is admitted; but the present case is not within the influence of this principle. The provision of the deed, leaving the property in the grantor’s possession until sale is made, is not of itself evidence of fraud, nor does the deed reserve to the grantor, as in Lang v. Lee, 3 Rand. 410 ; Perry v. Shen. Nat'l Bank, 27 Gratt. 755, and other cases, the power of sale, or any other power incompatible with the avowed purposes of the deed. Brand in such a case is never to be presumed, unless the terms of the instrument preclude any other inference : and this court has repeatedly held that fraud is not an irresistible inference from a provision in a deed of trust postponing a sale for a reasonable length of time, and reserving the use of the property to the grantor in the meantime. In such a case any interest so reserved which is subject to the grantor’s debts is not withdrawn from the reach of creditors, but may be sub [517] jected in any appropriate proceeding for that purpose. Dance v. Seaman, 11 Gratt. 778 ; Sipe v. Earman, 26 Id. 563 ; Brockenbrough v. Brockenbrough, 31 Id. 580 ; Young v. Willis, 82 Va. 291; Paul v. Baugh, 85 Id. 955. The trustees, moreover, in the present case, are expressly required to proceed with all convenient dispatch to ascertain the amount of the several debts secured in the deed, and then, or whenever thereafter any one or more of the secured creditors may require it, to sell the property conveyed, at public auction. There is nothing on the face of the deed to warrant the inference that the amount of the debts cannot be accurately ascertained within a reasonable time, nor does the fact that the exact amount of the debts is not stated render the deed fraudulent per se. Keagy v. Trout, 85 Va. 390. Nor is there any force in the suggestion that the property is indefinitely locked up, because there can be no sale until one or more of the creditors require it; for it is not to be presumed that the creditors will be unmindful of their rights, or otherwise than prompt in asserting them. But be that as it may, the decisions of this court are numerous, several of which have been already cited, in which similar provisions in deeds have been sustained ; and it is clear, besides, on principle, that, in case of any undue delay, a court of equity would compel the execution of the trust, and decree the surplus, if any, after paying the debts secured in the deed, to those entitled thereto. Another inference of fraud is sought to be deduced by the appellant from the provision requiring a sale for cash. But it would be most remarkable to hold that of itself a badge of fraud, when such are the terms prescribed by the statute in cases in which the deed does not otherwise provide. Code, sec. 2442. The circuit court, therefore, rightly held that the deed is not fraudulent on its face; and, this being so, there was clearly [518] no error íd overruling the motion for a receiver. . When the motion ivas acted on, no evidence had been taken tending to prove fraud in fact, and the motion was not renewed after the return of the report of the commissioner .and the evidence accompanying it. The appointment of a receiver is not a matter of right, but of discretion, to be governed by the circumstances of the case, one of which circumstances is the probability of the plaintiff’s being ultimately entitled to a decree. It is, moreover, a power always to be exercised with caution, and never except in a strong case. The general rule is to refuse an interlocutory application for a receiver, unless the plaintiff presents at least a prima facie case, and the court is satisfied that there is imminent danger of loss. Moreover, in the present case, the undisputed debts prior to the appellant’s judgment exceed in amount the assessed value of the land, and the proceeds of the personalty, which was sold under a decree in the. cause, are under the control of the court; so that, in any point of .view, for aught the record show's, the appellant was not prejudiced by the refusal to appoint a receiver. Whether the deed is fraudulent in fact, or whether the debts excepted to are T>ona fide and recoverable in this suit., are questions which have not as yet been passed on by the lower court. As to these matters the court, in the exercise of a discretionary power, recommitted the report for further inquiry, and of this action the appellant, under the circumstances of the case, has no right to complain. Decree affirmed.