delivered the opinion of the Court. The plaintiffs’ title to the property, for the taking and carrying away of which damages are demanded in the present action, is derived through a conveyance made to them by Joseph M. Brown. This conveyance, it is contended on the part of the defendant, who represents certain attaching creditors, is void as against the attachments, being made in violation of the provisions of the statute of 1836, c. 238.
To sustain this objection, it must be made to appear that it is a conveyance by an insolvent debtor to assignees or trustees for the use of a part of his creditors, to the exclusion of others who might wish to become parties to it, or not so made as to give each of the creditors who shall become parties to it, a share of the property transferred, in proportion to their respective debts.
Is this instrument a conveyance in trust for the use of creditors ? Upon recurring to the instrument, it will be found to be, on the face of it, a transfer of certain personal property, “ subject to a previous conveyance of the same date to George W. Pratt and others, and to all the provisions and parts thereof,” and subject also to the following condition : “ Provided, that if the party of the first part shall pay to the parties of the second part what he owes them severally, and indemnify and hold them harmless respectively against their liabilities for him.
It i§ insisted, that the provisions of the conveyance to Pratt and others, to which this is made subject, create a trust for creditors, either by their own effect or from their connexion with the mortgage to the plaintiffs, and that this trust is by force of these conveyances effectually secured to a limited number of the creditors of Brown, in exclusion of his other creditors.
The conveyance to the first mortgagees was made upon condition to be void upon payment of the debts due to, and the discharge of all liabilities assumed by the mortgagees for the mortgagor, and it also confers a full power on the mortgagees to make sale of the mortgaged property in such manner and on such terms as they may think judicious, and provides that any surplus property, or proceeds thereof, which may be left after paying and indemnifying themselves, shall belong to the mortgagor or his assigns. It is said, that the mortgage to Pratt and others, raises a trust on the face of it, as it contains a power to sell and dispose of the property, and an agreement to hold the surplus, after discharging the debts and liabilities secured by the mortgage, for the benefit of the mortgagor or his assigns.
In the opinion of the Court, however, the provisions contained in the first mortgage have not the legal effect to make it a conveyance in trust for creditors. If any trust was created by that instrument, it was a trust for the mortgagor. There is no reservation or appropriation of any portion of the mortgaged property, or its proceeds, to the use of any other individual than the mortgagees and mortgagor, or those who might subsequently acquire his right. There is no evidence in the case, that the first mortgagees had any knowledge of a second mortgage to be made and executed simultaneously with the first, and
The statute of 1836, c. 238, does not, as we think, impair the right of securing a particular creditor, to the prejudice of other creditors, unless when attempted to be done by or in connexion with an assignment or conveyance made by an insolvent debtor to assignees or trustees for the use of any of his creditors.
The object of the statute was to introduce a new and some what more effectual mode of conveyance by an insolvent . debtor, of his property, for the benefit of all his creditors ; enabling him, by the force of such conveyance, to defeat all subsequent attachments made by individual creditors. It was also undoubtedly intended to discourage the making of conveyances giving preferences to any of his creditors, by holding out to a debtor the advantage of being fully discharged from his debts to some considerable extent, by giving such effect to all cases of debts due to those creditors who became parties to such assignment ; provided the debtor, among other things, had wholly abstained from any act of preference to any one of his creditors, in contemplation of making such assignment.
But this act did not profess to carry out the broad principle of entire equality in the distribution of all the effects of a debtor, to the extent that has since been more effectually provided for by the statute of 1838, c. 163. It allowed to exist in full force the right to secure a lien or preference in favor of any creditor by an attachment made before the execution of the assignment. It can hardly, therefore, be said to be a law intended to prevent all preferences in favor of individual cred
The present case is entirely distinguishable from that of Perry v. Holden, 22 Pick. 269, which was that of a mortgage directly connected with a general assignment of all the debt- or’s property in trust for his creditors, and which was executed in connexion with, and made a part of, the same transaction, and was therefore held void.
But it is further contended, that the mortgage of the plaintiffs is invalid, because the amount of debts and liabilities intended to be secured by it is not described with sufficient precision in the mortgage itself. The rule on this point has undoubtedly fluctuated in some of the States of the Union. In the case cited from the State of Connecticut, Pettibone v. Griswold, 4 Connect. R. 158, a pretty strict rule was applied and a conveyance was held ineffectual as a lien, for not giving a sufficiently full recital of the intended incumbrance. In a later case, Hubbard v. Savage, 8 Connect. R. 219, the doctrine was modified and the rule stated to be, that the debts and liabilities should be “ described with sufficient certainty to enable subsequent creditors or purchasers to ascertain, either from the condition of the deed, or by inquiry aliunde, the extent of the incumbrance, or from its nature, as in cases where the mortgage is for indemnity, that there is a prior lien which may not then be capable of ascertainment.” In Massachusetts, a liberal rule has always, I believe, prevailed on this subject. Badlam v. Tucker, 1 Pick. 339. Indeed, the use of mortgages as security for future advances, and as indemnity for liabilities as sureties and indorsers, must necessarily exclude the idea of great precision in the exact amount of the incumbrance being made apparent on the face of the mortgage. There must be a sufficient general description to embrace the demands and liabilities intended to be secured, and to put the
It was also further objected, that the plaintiffs are not entitled to maintain an action of trespass de bonis asportatis.
Upon this question the Court are not disposed to pronounce any final decision at this time, as we are apprehensive that the facts are not set forth so fully and distinctly as they should be, to present that question properly for a final decision on its merits. The rule is correctly stated by the counsel for the defendant, that to maintain this action, the plaintiffs must show that they had either the actual possession of the property, or the right to the possession, and if upon further inquiry as to the facts, it shall be made to appear, that at the time the trespass is alleged to have been committed, the mortgaged property was in the exclusive possession of the first mortgagees on their own sole account as prior mortgagees, the action in its present form cannot be maintained. On the other hand, if it shall appear that the possession of the property was, at the time of the attachment by the defendant, held for the common benefit of the mortgagees, in both mortgages, then trespass may be maintained- ; and if it shall appear that the incumbrance of the first mortgage has been wholly discharged, the plaintiffs will be entitled to recover for the entire value of the property taken, but if otherwise, only to the extent of the interest they had in the property.