Whipple v. Pope
| Decision Date | 31 January 1864 |
| Citation | 1864 WL 2929,33 Ill. 334 |
| Parties | PERLEY B. WHIPPLE et al.v.ABRAM F. POPE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of Macoupin County.
Bill in equity filed by defendant in error against plaintiffs in error for the purpose of setting aside a certain deed of trust, the provisions of which in question, are stated by the court. The decree below was for complainant.
Levi Davis, for plaintiffs in error.
Hay & Cullom, for defendant in error.
This bill was filed for the purpose of setting aside a deed of trust transferring property for the benefit of creditors. It is insisted that the deed contains provisions which, as to the creditors, render it void. The first of the provisions is this: “To collect and dispose of said property and effects on such terms and in such manner as they, the said trustees, may think best for the interest of the parties concerned.” If this language in a deed of trust by necessary intendment confers the power to sell on credit, then it avoids the deed, as tending to hinder and delay creditors. The language employed, and objected to, in this deed of assignment, and discussed and passed upon in the case of Kellogg v. Slauson, 1 Kern. 302, in the Court of Appeals of New York, was almost identical with this, and yet the deed was held sufficient. The courts of that State have, in their more recent decisions, shown but little favor to such instruments, which renders the authority the more valuable. Some of their lower courts have announced a contrary rule, but this decision of the court of last resort in that State must be taken as the law of that jurisdiction.
Other courts have adopted the same rule. Nye v. Vanhuson, 6 Mich. 346. In the case of Kellogg v. Slauson the court decide that authority to sell on such “terms and conditions” as they might deem for the best interests of the parties concerned, did not authorize a sale on credit. These cases seem to be conclusive of this. Nor have we been referred to any case, decided by a court of last resort, which announces a different rule, or held that such language avoids the deed.
When this language is considered, it does not seem necessarily to imply a power to sell on credit. The language “on such terms and manner” has a more comprehensive meaning. They, in the connection in which they are here employed, mean that the trustees might sell at private or public sale, in packages or by the single article, in large or small quantities, by sample or on examination. Or that they might bring on the sale at a longer or shorter period from the time of the assignment. As the law prohibits a person making an assignment for the benefit of his creditors from authorizing a sale on credit, we should not give an unreasonable construction to the language to render the instrument void. We cannot presume that it was the design of the grantor to defraud his creditors. Such an intention must appear from the deed itself, or from other evidence. And when two constructions may be given to the language, we should adopt that which will uphold rather than defeat the instrument. Fraud is not inferred except from evidence, and to defeat this deed we would have to infer a fraudulent design without testimony. Since...
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Black v. Palmer
...limited to a disposition in the best interests of the creditors the trust was valid. Sackett v. Mansfield, 1861, 26 Ill. 21; Whipple v. Pope, 1864, 33 Ill. 334; Blow v. Gage, 1857, 44 Ill. 208. However, where the assignee could sell on credit, was free from liability on all but willful defa......
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Farwell v. Cohen
... ... 257;Sackett v. Mansfield, 26 Ill. 27; Myers v. Kinzie, Id. 36; Finlay v. Dickerson, 29 Ill. 9;Pierce v. Brewster, 32 Ill. 268;Whipple v. Pope, 33 Ill. 334;Field v. Flanders, 40 Ill. 470;Gibson v. Ress, 50 Ill. 383. Such a deed of assignment as is above described is referred to and ... ...
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Ryhiner v. Ruegger
...Young v. Cooper, 59 Ill. 121. The assignment was fraudulent: Bowen v. Parkhurst, 24 Ill. 257; Pierce v. Brewster, 32 Ill. 268; Whipple v. Post, 33 Ill. 334; Nat. Bk. v. Bank of Com., 94 Ill. 280; Sumner v. Hicks, 2 Black (U. S.) 532; Keith v. Fink, 47 Ill. 272; Hardin v. Osborne, 60 Ill. 93......
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...809. Price v. De Ford, 18 Md. 489. Watkins v. Wallace, 19 Mich. 57. Wilt v. Franklin, 1 Binn. 514. Finlay v. Dickerson, 29 Ill. 9. Whipple v. Pope, 33 Ill. 334. Harwood & Ames, for defendant in The instrument offered in evidence as an assignment was properly excluded. 1. Because it was not ......