Jones v. Syer

Alvey, J., delivered the opinion of the Court. If the property embraced in the assignment to Jones, of the 1st of February, 1878, really belonged to Kimball, and the assignment was void, as contended by the appellees, the latter were clearly entitled to recover. The assignment professes to be for the benefit of creditors generally, and does not exact releases from the creditors as a condition upon which they are allowed to share in the proceeds of the sales of the property assigned ; hut, by the express terms of the deed, the trustee, who is the garnishee in this case, is authorized and empowered “ to carry on and conduct said business in his discretion, for such time as in his judgment it shall bebeneficial to do so, or to sell all of said goods and stock in trade and property, [216] at such times, in such manner, and for such prices, as he may deem proper, and apply the proceeds,” &c. It is obvious, the certain effect of this clause would be to hinder and delay creditors ; and as against them such provision renders the deed utterly void. It is an attempt on the part of the debtor to place his property, for an uncertain and indefinite period, beyond the reach of his creditors, and to make their rights in a great measure dependent upon the uncontrolled discretion of a trustee of the debtor’s own selection. The law will tolerate no such attempt, but treats the act as a fraud upon creditors, and the instrument of conveyance as simply void as against them. The cases in this Court of the American Exchange Bank vs. Inloes, Garn. of Turnbull & Co., 7 Md., 380; Same Case, 11 Md., 173, and the recent case of Maughlin vs. Tyler, 47 Md., 545, are, in all respects, entirely conclusive of this, and it is unnecessary to refer to other authorities upon the subject. It was attempted to be shown by the testimony of the trustee and garnishee himself, that the discretion given him by the terms of the assignment as to the manner and time of disposing of the property, was intended to he exercised for the exclusive benefit of the creditors ; and the rejection of such evidence was the subject of the first exception taken by the appellant. But it is perfectly well settled that the deed must speak for itself, and that its obnoxious provisions cannot be aided, modified or explained, by extrinsic evidence. The cases of Malcolm vs. Hodges, 8 Md., 418, and Inloes vs. American Exchange Bank, 11 Md., 173, are conclusive of this question; and the Court below was clearly right in ruling as it did upon the offer of this evidence. As to the second exception taken, that relates to a question of the right of set-off attempted to be set up by the garnishee as against Cleary, one of the grantors in the assignment; but that question has become wholly imma [217] terial, inasmuch as, under the instruction of the Court, the jury have found that the property assigned belonged to Kimball, and not to Cleary. A debt due from Cleary to the garnishee constituted no set-off as against the claim of the appellees, upon the assumption that the property assigned, or its proceeds in the hands of the garnishee, belonged to Kimball, the judgment debtor in the attachment; and that question is definitely settled by the verdict of the jury. (Decided 20th June, 1879.) Einding no error in any of the rulings excepted to, we affirm the judgment. Judgment affirmed.