OPINION. The opinions in this case were filed December 1, 1910, but held up on petition for rehearing until
February 1, 1911. The following opinion was delivered by (After stating the facts.) The first question that will be considered is, whether there was error on the part of his Honor, the Circuit Judge, in not rendering judgment in favor of the plaintiff, for the amount of the note mentioned in the complaint. The record does not show, that the Circuit Judge passed upon the question, whether the plaintiff was entitled to judgment on said note, nor does the decree purport to be final upon all the issues.
The plaintiff can, therefore, ask for judgment when the case is remanded.
The next question for determination is, whether there was error on the part of the Circuit Judge, in concluding that the deed was not void under the assignment law. In reaching a conclusion as to this question it will be necessary to determine several facts: (1) Were W. A. Bowman and the Sumter Banking and Mercantile *Page 503 Co. insolvent when the deed was executed.? The recitals in the deed, the statement in the decree and the testimony satisfy us, after most careful consideration, that not only the Sumter Banking Mercantile Co., but W.A. Bowman, also were insolvent at that time.
We do not deem it necessary to state, in detail, the facts and circumstances upon which this conclusion is based. There is one fact however to which we desire to call special attention. The statement of the liabilities and assets of W.A. Bowman hereinbefore set out, shows conclusively that his additional liability as endorser, on the notes and obligations of the Sumter Banking and Mercantile Co. made him hopelessly insolvent.
(2) Did W.A. Bowman intend to convey and assign, all his property both real and personal? The sixth section of the deed is as follows: "That the said party of the second part (W.A. Bowman) shall forthwith and by this instrument, convey and assign unto the said trustees all of his property real and personal." * * * The twenty-third section recites, that "all of the accounts and choses-in-action, of the party of the first part, and of the said W.A. Bowman, have heretofore been assigned to the Bank of Sumter, except such as were specially assigned to other creditors." These sections show that prior to the deed, W.A. Bowman had disposed of all his accounts and choses-in-action, and that it was his intention, when the deed was executed to convey and assign all his property, both real and personal, and that no part thereof was reserved to him.
The respondents' attorneys, however, contend that the force and effect of the provisions of these sections were rendered ineffectual, for the following reasons, to wit: "It cannot be contended that the deed has the legal effect, of conveying all of Bowman's property, for the reason that the evidence shows, that the trustees became possessed of all property and assets actually conveyed, and claimed no other property or assets than those of which they were possessed." *Page 504 In other words, that a breach of duty on the part of the trustees, in failing to take possession of the property conveyed and assigned to them, would defeat the right of an outside creditor to have the terms of the deed enforced. It is only necessary to state such a proposition to show that it is untenable, and would subject the trustees to liability, for a breach of duty.
(3) Did the deed contemplate that a surplus of the proceeds should be returned to W.A. Bowman before all his creditors were paid? This question is easy of solution, if we but keep in mind, that the words, "the creditors" have reference to those who were parties to the deed, and that the words, "the creditors" and "said creditors" were used interchangeably. We deem it only necessary to refer to section thirteen of the deed, to show that this question must be answered in the affirmative.
(4) Did the deed intend a preference to those creditors signing it over other creditors who might not see fit, to accept its provisions? The deed is quite lengthy and we shall not undertake to discuss, separately, the provisions of the various sections. We desire however to call special attention to section thirteen, which contains this provision: "That this agreement may, by endorsement hereon in writing, by the party of the third part, and of all the said creditors be continued in full force, in all of its terms and provisions, after December 31st, 1908, for one year, and from year to year thereafter, until all of the indebtedness due to the said party of the third part, and the said creditors shall have been fully paid and liquidated." It then provides that the surplus shall be conveyed to the party of the first part, and to W.A. Bowman, but makes no provision for those other than "the said creditors." This section not only gives a preference to "the creditors" in the distribution of the funds, but in the management of the trust estate.
We are therefore forced to the conclusion that the deed was null and void under the assignment law. *Page 505
The last question for consideration is whether the deed was obnoxious to the statute of Elizabeth. The deed shows upon its face, that the enforcement of its provisions would necessarily tend to hinder and delay (perhaps indefinitely) the plaintiff and other creditors of W.A. Bowman in the collection of their claims, who might not see fit to accept its terms. This fact alone is sufficient to show that the deed was repugnant to said statute.
The question whether the plaintiff is estopped from maintaining this action, by reason of the fact, that he, as vice president of the Richmond Guano Co., alone signed the trust deed in behalf of that corporation, was not ruled upon by his Honor, the Circuit Judge, and no notice was served by the respondents' attorneys that they would rely upon such proposition to sustain the judgment of the Circuit Court. Therefore, the question is not properly before this Court for consideration.
For these reasons I think the judgment should be reversed.
MR. CHIEF JUSTICE JONES concurs.