Gardner v. the Commercial Nat'l Bank of Providence.
| Decision Date | 18 May 1880 |
| Citation | 95 Ill. 298,1880 WL 10036 |
| Parties | HENRY W. GARDNER et al.v.THE COMMERCIAL NATIONAL BANK OF PROVIDENCE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
The Commercial National Bank of Providence, Rhode Island, sued out a writ of attachment againt Davis, Towne, Tew and Sackett, copartners, under the firm name of Sackett, Davis & Co., which was levied on certain real estate, the legal title whereof was in Sackett.
Henry W. Gardner, Lodowick Brayton and Joseph B. Matthewson interpleaded, claiming that they were the owners of the attached property as trustees, etc. To this there was an answer denying that they were such owners.
By agreement of parties the cause was submitted for trial on the interpleaders.
Judgment was rendered in favor of the bank and against the parties claiming as trustees, and as such interpleading; and, thereupon, they appealed to this court. They claimed under the following deed of assignment, which was read in evidence on the trial:
“Whereas, the said Sackett, Davis & Co. are indebted to divers persons in divers sums of money, and their assets, although amounting in value to about three times their said indebtedness, can not immediately be made available for the payment of the same, as their said indebtedness shall from time to time mature; and whereas, the said parties are desirous of equally securing and paying all their said indebtedness by the conveyance of all their properties to the said parties of the second part in trust, as hereinafter provided, which trust the said parties of the second part do by these presents accept.
And, whereas, the best interests of the creditors may require that the jewelry business in which the said Sackett, Davis & Co. have been hitherto engaged, should be for some period continued by the said trustees, and by them gradually discontinued and closed out.
Therefore, said parties of the first part, in consideration of the premises and of the trusts hereinafter set forth, and of one dollar, convey, etc., to the parties of the second part, the survivor or survivors of them, etc., all the real and personal estate of which the parties of the first part or any or either of them are seized or possessed, or to which they or any of them are entitled, or have any interest in as copartners or otherwise, except such property as is exempt from attachment by law. Upon the following trusts: They shall take possession of all the property hereby conveyed, and shall have power to invest, reinvest and change investments of the same, and to manage, act and deal with said property absolutely in their uncontrolled discretion, as they may judge for the best interest of all the creditors. They shall have free, full and uncontrolled power, in their discretion, to carry on the said jewelry business of the parties of the first part, for such time as the said trustees may deem for the best interests of the creditors and necessary for the purpose of preventing shrinkage and loss, and of closing out and of liquidating the same to the best advantage; and therein to draw, make, sign, indorse and guarantee any and all bills of exchange, promissory notes or other commercial paper, as well in renewal or extension of any commercial paper on which the said parties of the first part are now liable, in any form, or for any other existing debts or liability of the said parties of the first part, or for any new indebtedness or liability which may be contracted in so carrying on said business: Provided, however, that the foregoing authority to carry on said jewelry business, for the purposes above declared, shall forthwith cease and determine whenever a majority in amount of the creditors of said parties of the first part shall so direct the said trustees. They shall have free, full and uncontrolled power, in their discretion, to sell any and all of the real property hereby conveyed, and to sign, seal, acknowledge and deliver any deed or deeds, conveyance or conveyances, of such real property from time to time as they may judge best, and so as to pass the fee thereof, and with or without warranties, as they may deem best, and in like manner to lease the same upon such terms as they may see fit, or to mortgage any and all of said real property and to sell and transfer, pledge or mortgage, any and all of the personal property hereby conveyed; to settle and compound for any debts or other choses in action held in trust under this indenture, and to give good and sufficient receipts, acquittances and discharges for the same; and the said parties of the first part hereby declare that the receipt of the said trustees for any rent, interests, dividends or other moneys whatsoever shall be a full acquittance and discharge for the same.
And the said parties of the first part hereby direct the said trustees,--after paying all taxes and assessments upon said trust property, and for all repairs and improvements they may make or cause to be made of or upon the same, and all expenses of managing said property, including the premiums for such insurance upon the insurable property hereby conveyed as the said trustees may keep and maintain, and after reserving to themselves a reasonable compensation for their services hereunder, and paying in full the wages due from the said parties of the first part to all persons who have performed labor within six months previous to the date hereof, not exceeding one hundred dollars to any one person,--to retire all of the said indebtedness and liabilities of the said parties of the first part, including such as may be contracted by said trustees in carrying on the said jewelry business or otherwise, in carrying out the provisions of this indenture, as rapidly as, in their opinion, it can judiciously be done out of the profits, income and revenues of the jewelry business and any investments of said trust property, and by the sale, pledge or mortgage of such of the real and personal property held in trust under this deed, as they may think desirable, and in so doing to make such dividends or pro rata payments on account of all said indebtedness and liabilities, from time to time, as the said trustees may deem prudent and for the best interests of all the creditors; and as rapidly as in the opinion of said trustees it can judiciously be done, to convert the whole of the property hereby conveyed, or so much thereof as may be necessary, into money, and apply and appropriate to the payment in full, if sufficient, otherwise ratably, of all claims and demands against the said parties of the first part, accounting to them, their heirs, etc., for any surplus that may remain, it being the true intent and meaning hereof to convey all of the property and estate of the said parties of the first part to the said parties of the second part, for the equal benefit of all the creditors of the said parties of the first part in proportion to their respective claims, and that as soon as may be, having regard to the best interests, and avoiding needless sacrifice of the property hereby conveyed, (in order that, if possible, all of said claims may be paid in full,) the said trustees shall convert said property, or so much thereof as may be necessary, into money and apply to the equal payment of all said claims without preference, other than the wages of labor aforementioned; the said parties of the first part not intending, however, by this declaration, to limit or restrict any of the power hereinbefore given to said trustees, and which they may deem it for the best interests of the creditors to exercise.”
Acknowledged by all the parties of the first part before a notary public of said Providence, on the 5th day of December, 1878, and recorded in the recorder's office of Cook county, Illinois, December 9, 1878.
Henry W. Gardner and others also read in evidence a deed from the defendant, George H. Sackett, and wife, to said Henry W. Gardner and others, dated the 31st day of December, A. D. 1878, which is as follows:
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