12 Ala. 101 (Ala. 1847), Grimshaw v. Walker

Citation12 Ala. 101
Opinion JudgeORMOND, J.
Party NameGRIMSHAW AND BROWN v. WALKER.
AttorneyCAMPBELL, for plaintiff in error. W. G. JONES, contra.
CourtSupreme Court of Alabama

Page 101

12 Ala. 101 (Ala. 1847)

GRIMSHAW AND BROWN

v.

WALKER.

Supreme Court of Alabama

June Term, 1847

Error to the Chancery Court of Mobile.

Where the chancellor dismissed a bill for an insufficient reason, the judgment must be reversed, notwithstanding he had improperly overruled a demurrer to the bill which was founded on the want of proper parties and uncertainty.

THE plaintiffs in error filed their bill as judgment creditors of Robert L. Walker, to set aside a deed of assignment made by him, for the benefit of certain of his creditors. The deed conveys to trustees all the real and personal estate of the grantor in trust, that as soon as convenient, they would dispose of the lands, collect the debts, &c. and from the proceeds, first to pay certain debts due and owing from Walker for cotton balances, and borrowed money, as shown in a schedule marked C. Next, a debt due the estate of Alexander J. Jude--the surplus, if any, to be appropriated to the other creditors rateably, who shall within four months from the date of the deed, execute a release of their claims, "and furthermore, if there be any surplus, after fulfilling all the trusts, aforesaid, the same shall be paid over to the said Robert L. Walker, his heirs, executors, &c."

The bill charges fraud in the making of the deed.

The defendants answered, denying all fraud, and that the deed was bona fide.

The chancellor considering the deed valid on its face, and there being no proof of fraud in fact, dismissed the bill; from which this writ is prosecuted.

CAMPBELL, for plaintiff in error.

W. G. JONES, contra.

ORMOND, J.

The principal question to be determined, arises upon the last clause of the deed, which it is insisted created a resulting trust in favor of the grantor, and rendered the deed void.

The law of this court, on the subject of assignments by an insolvent, is thus stated in Ashurst v. Martin, 9 Porter, 566: "A debtor may convey his property in trust to pay one or more creditors in full, or to pay his creditors in unequal proportions, provided he relinquishes all control over it, and stipulates for no pecuniary interest to himself, but fairly, and bona fide, appropriates it to the payment of his debts." This is again considered, and re-affirmed, in Gazzam v. Poyntz, 4 Ala. 379, and may be considered as the settled law of this court. See also Hyslop v. Clark, 14 Johns. 458; Austin v. Bell, 20 Id. 442; Mackie v. Carnes, 5 Cow. 547.

The only question, then, is, whether this assignment, being made by an insolvent, and conveying all his property to trustees, by a deed giving preferences to certain creditors, does provide for a pecuniary benefit to the grantor.

By the terms of the deed, the trustee is required, after the execution of the trusts, to pay over the surplus, if any, to the debtor. What are the trusts of the deed? First, to pay the preferred creditors. Second, such of the remaining creditors as within four months executed a release, and the residue, if any, to the debtor. It is very clear there was no authority on the part of the trustees, to pay any...

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15 practice notes
  • 144 N.W. 85 (N.D. 1913), 81912, MacLaren v. Kramer
    • United States
    • United States State Supreme Court of North Dakota
    • October 7, 1913
    ...void. Also, where it is provided that the surplus, after settling with assenting creditors, should be paid to debtor. Grimshaw v. Walker, 12 Ala. 101; Lill v. Brant, 6 Ill.App. 366; Bangs v. Fadden, 5 N.D. 94, 64 N.W. 78; May v. Walker, 35 Minn. 194, 28 N.W. 252; McConnell v. Rakness, 41 Mi......
  • 141 So. 634 (Ala. 1932), 1 Div. 666, Drath v. Armstrong
    • United States
    • Supreme Court of Alabama
    • January 21, 1932
    ...326; Rugely v. Robinson, 10 Ala. 703; Alderson v. Harris, 12 Ala. 580; Toulmin v. Hamilton, 7 Ala. 369; Grimshaw & Brown v. Walker, 12 Ala. 101; Hartley v. Bloodgood, 16 Ala. And Mr. Chief Justice Brickell thus states the general rule in Prout v. Hoge, 57 Ala. 28, 30: "The general ......
  • 1 S.W. 684 (Ark. 1886), Collier v. Davis
    • United States
    • Supreme Court of Arkansas
    • October 16, 1886
    ...to accept, after paying the debt of the residuary creditor, is fraudulent and void on its face." Compare also Grimshaw v. Walker, 12 Ala. 101, and Reavis v. Garner, 12 Ala. 661, which are not mentioned in the The case of McCall v. Hinkley, 4 Gill 128, and Kettlewell v. Stewart, 8 Gill ......
  • 1 S.W. 552 (Ark. 1886), McReynolds v. Dedman
    • United States
    • Supreme Court of Arkansas
    • October 9, 1886
    ...6 Wall., 299; 2 Kent. Com., 534; Bump. Fr. Conv., 436-7, 3 ed.; Burrell on Ass., 4 ed., 291, sec. 209; 3 Md. 49; 17 Vt. 390; 16 Md. 101; 12 Ala. 101, 664; 8 Ind. 101; 14 Id., 128; 1 Head, 34; 7 Pet., 608; 3 Watts, 198; 6 Conn. 276; Ware's Rep., 247; 4 Comst., 24; 2 Hill Chy., (S. C.), 433; ......
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16 cases
  • 144 N.W. 85 (N.D. 1913), 81912, MacLaren v. Kramer
    • United States
    • United States State Supreme Court of North Dakota
    • October 7, 1913
    ...void. Also, where it is provided that the surplus, after settling with assenting creditors, should be paid to debtor. Grimshaw v. Walker, 12 Ala. 101; Lill v. Brant, 6 Ill.App. 366; Bangs v. Fadden, 5 N.D. 94, 64 N.W. 78; May v. Walker, 35 Minn. 194, 28 N.W. 252; McConnell v. Rakness, 41 Mi......
  • 141 So. 634 (Ala. 1932), 1 Div. 666, Drath v. Armstrong
    • United States
    • Supreme Court of Alabama
    • January 21, 1932
    ...326; Rugely v. Robinson, 10 Ala. 703; Alderson v. Harris, 12 Ala. 580; Toulmin v. Hamilton, 7 Ala. 369; Grimshaw & Brown v. Walker, 12 Ala. 101; Hartley v. Bloodgood, 16 Ala. And Mr. Chief Justice Brickell thus states the general rule in Prout v. Hoge, 57 Ala. 28, 30: "The general ......
  • 1 S.W. 684 (Ark. 1886), Collier v. Davis
    • United States
    • Supreme Court of Arkansas
    • October 16, 1886
    ...to accept, after paying the debt of the residuary creditor, is fraudulent and void on its face." Compare also Grimshaw v. Walker, 12 Ala. 101, and Reavis v. Garner, 12 Ala. 661, which are not mentioned in the The case of McCall v. Hinkley, 4 Gill 128, and Kettlewell v. Stewart, 8 Gill ......
  • 1 S.W. 552 (Ark. 1886), McReynolds v. Dedman
    • United States
    • Supreme Court of Arkansas
    • October 9, 1886
    ...6 Wall., 299; 2 Kent. Com., 534; Bump. Fr. Conv., 436-7, 3 ed.; Burrell on Ass., 4 ed., 291, sec. 209; 3 Md. 49; 17 Vt. 390; 16 Md. 101; 12 Ala. 101, 664; 8 Ind. 101; 14 Id., 128; 1 Head, 34; 7 Pet., 608; 3 Watts, 198; 6 Conn. 276; Ware's Rep., 247; 4 Comst., 24; 2 Hill Chy., (S. C.), 433; ......
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