Johnson v. McAllister's Assignee

Scott, Judge, delivered the opinion of the court. We have never adopted in this state the course of decisions in New York under the statute concerning fraudulent conveyances. Our courts do not hear extrinsic evidence in relation to the validity of a conveyance, and then, on such evidence, as a matter of law, pronounce the conveyance void. [331] When a conveyance on its face is fraudulent and void, the court will declare it so. Rut when it appears to be fair, and its validity depends on extrinsic evidence, that evidence is submitted to a jury, who will determine, as a matter of fact, whether it is fraudulent or not. We do not hold that a clause., in a deed of assignment for the benefit of creditors, which requires the assigned effects to be sold on a credit, of itself renders the deed void. Such requirement is not of itself proof of fraud. The motive to such a requirement must be determined by circumstances. Cases may occur in which a sale on a credit might be advantageous to all interested. Our statute of assignments directs the courts to sell the assigned effects for cash in hand, or upon such reasonable credits as shall appear to such courts to be for the interest of all concerned. (R. C. 1855, p.-, sec. 31.) The last section in our assignment law, it has been held, does not prevent a debtor from giving a preference to some creditors over others, though that section prohibits any discrimination amongst those that may be included in the deed. (Shapley v. Baird, 26 Mo. 322.) The reservation to the grantor of any surplus after satisfying the preferred creditors does not avoid a deed of assignment. Such a reservation is no more than the law implies. The surplus would belong to the debtor whether the deed contained the reservation or not, and under our system of practice it may readily be reached by a creditor. But there may be no surplus. Shall a deed be declared void because it contains a provision which effects nothing ? (Richards v. Levin, 16 Mo. 598.) As the trial of the issue was submitted to the court its finding will not be disturbed, according to the practice of this court. Affirmed. The other judges concur.