Garden & Co. v. Bodwing's Admx.

• Decision Date: 17 July 1876
• Court: West Virginia Supreme Court
• Parties: Garden & Co. v. Bodwing's Admx.

9 W.Va. 121

Garden & Co.

v.Bodwing's Admx.

Supreme Court of Appeals of West Virginia.

July 17, 1876.

S. conveyed by deed of trust to McC, certain goods, to secure to B the payment of a certain sum of money. The deec. contained the following clause: that S., agrees and obligates himself to keep always on hand a stock of goods equal in quality, description and value to the personal property hereinabove mentioned, until the debt which this deed is drawn to secure is paid in full Held:

1. That the inference fairly deducible from that clause is, that the grantor, not only retains possession of the goods, but has an absolute power of sale thereof.

2. The clause is inconsistent with the security for the debt, or object of the trust, and adequate to the defeat thereof, being equivalent to a power of revocation; and the deed is therefore fraudulent and void, as to creditors.

Appeal from, and supersedeas to, a decree of the municipal court of Wheeling, rendered on the fourth day of December, 1875, granted on the petition of Susanna Bod wing, administratrix of Philip Bod wing, deceased.

The complainants were C. H. Garden, Daniel Donavan, Joseph Tierney, John L. Bugh, William M. Garden, and John Campbell, partners as C. H. Gardner & Co., and the respondents, Thomas McCormiek, trustee of David F. Schwartz, and said Bodwing as administratrix, as aforesaid.

The facts are sufficiently stated in the opinion of the court.

The Hon Gibson S. Cranmer, judge of said court, presided at the hearing below.

Henry M. Russell for the appellant.

Davenport & Dovener and C. W. B. Allison for the appellees.

Moore, Judge:

The only question in this case, is, as to the validity of the deed of trust made by Schwartz to McCormick, as trustee, upon certain personal property, in his store, to secure to Mrs. Bodwing a debt of $800, evidenced by two notes, designated in said deed, not payable for several months from date of deed.

The objectionable clause in the deed, is that in which Schwartz "agrees and obligates himself to keep always on hand a stock of goods equal in quality, description and value to the personal property herein above mentioned, until the debt which this deed is drawn to secure, is paid in full."

Is that clause inconsistent with the security for the debt, or object of the trust, and adequate to the defeat thereof?

The inference fairly deducible from that clause, is, that the grantor not only retains possession of the goods, but has an absolute power of sale thereof....