Ewing v. Walker

• Decision Date: 04 May 1895
• Citation: 31 S.W. 45
• Parties: EWING v. WALKER et al.
• Court: Arkansas Supreme Court

31 S.W. 45

EWING v. WALKER et al.

Supreme Court of Arkansas.

May 4, 1895.

Appeal from circuit court, Clark county; Rufus D. Hearn, Judge.

Suit by Thomas M. Ewing, administrator of A. A. Key, to have a receiver appointed under the assignment of M. S. Walker and others. From a decree declaring the assignment previously made invalid, plaintiff appeals. Reversed.

Tompkins & Greeson, for appellant. Murry & Kinsworthy, for appellees.

WOOD, J.

On the 14th day of February, 1890, M. S. Walker, a failing merchant, executed a deed of general assignment for the benefit of creditors, naming therein certain ones whom he preferred. On the same day the assignor filed this deed for record, and notified the assignee, who immediately declined to act. A receiver was appointed upon the application of A. A. Key, one of the preferred creditors. This occurred also on the 14th of February. Three days after the receiver filed his bond, was sworn in, and took charge of the property. The attachments were not issued until some time subsequent. The chancellor found that "it was not the intention of the assignor that the assignee should act, but that he should be ignored and a receiver appointed." The above are substantially the facts as recited in the decree. Deeds of assignment, on account of their frequency and the purposes for which they are made, are among the most important of "express active trusts." 2 Pom. Eq. Jur. § 992, note 3. The rights and interests of the beneficiaries under them are not dependent upon the acceptance of the trust by the assignee named in the deed. Of course, there must be an acceptance on the part of the assignee before he can exercise any power or be subject to any liability. Id. §§ 1007, 1060. But if the beneficial interests of the cestuis que trustent could be swept away by the mere contingency of the nonacceptance of the trust by the assignee, from any cause, they would rest upon a most insecure foundation. It is not difficult to imagine a case where the assignor might in good faith execute his deed of assignment, and place it upon record, or deliver it to a third person to be delivered to the assignee, and the assignee die, become insane, move away, or refuse, and hence not accept pro forma the trust. But the trust shall not fail on that account; for it is one of the cardinal rules of equity jurisprudence not to suffer an express trust to fail for the want of a trustee. 2 Pom. Eq. Jur. § 1007; Tied. Eq. Jur. § 313, and authorities cited; 1 Perry, Trusts, § 38; Furman v. Fisher, 94 Am. Dec. 210; Field v. Arrowsmith, 3 Humph. 446; Heights Co. v. Oettinger, 53 Md. 46; Adams v. Adams, 21 Wall. 185; Eyrick v. Hetrick, 13 Pa. St. 488. This old principle almost dominates the facts of this record; for the court completely eliminated the question of fraud in attempting to evade the statute of assignments by excluding the evidence upon this point offered by appellees, and this evidence was properly excluded. 1 Greenl. Ev. 163; Sand. & H. Dig. §§ 2977, 2978. Upon the failure or refusal of the trustee to accept the trust, the interposition of the chancery court was properly invoked and properly exercised. See authorities supra, and King v. Donnelly, 5 Paige, 46, and numerous authorities in note.

The deed of assignment in this case, as found by the chancellor, was good upon its face. The placing it upon the record evidenced the purpose of the assignor to deliver the deed and surrender the property described therein for the benefit of...