Baldwin v. Flash, Preston & Co.
Baldwin v. Flash, Preston & Co.
Opinion of the Court
delivered the opinion of the court.
The objections to the writ of attachment as issued by a justice of the peace in Jackson, and returnable and returned within less than five days after its issuance, are without merit.
Treating the deed of trust executed by Parkman on the 5th of May, 1879, as having no validity as such with respect to third persons not parties to it, because of its non-registration, but regarding it as first made when it was filed for record, we discover nothing in the transaction by which Baldwin received a surrender of the goods for the benefit and security of Bickham & Moore, except the very frequent occurrence of a transfer of goods by a debtor to pay his creditor whom he prefers. The law permits this to be done ; and however reprehensible it may be in the view of some that a debtor should devote to the payment of his preferred creditor goods for which he owes another, the law does hot condemn it.
When the attachment was levied on the goods they were in the possession of Baldwin, delivered to him for the benefit of Bickham & Moore by Parkman, who, before a lien was fastened on them, had the right to apply them, in good faith, to the payment of any of his creditors. Although the goods were surrendered, to be disposed of as provided by the deed of trust, or as it was modified by the terms of the written transfer, and although the deed of trust rmiy have been invalid, but may have been the inducing cause of the surrender of the goods, it is certain that the transaction was a delivery of the possession of the goods by Parkman to Baldwin, to be disposed of for Bickham & Moore. If the deed of trust conferred no right on Baldwin to the goods, their deliveiy to him did.
The instruction given to the jury at the instance of the plaintiffs contravenes this view. It ignores the very important
If Parkman had never made the deed of trust, and had, on January 28, 1880, delivered his goods to Baldwin, as trustee, to sell, and pay Bickham & Moore, as preferred creditors, the validity of the transaction would uot have been questioned. It would have been unassailable. The fact that he made a deed of trust, and had an understanding that it should be withheld from record until Bickham & Moore should decide to place it on record, and that it was withheld from record until about the time that ho delivered the goods to Baldwin, in no degree lessened his power to devote his goods to preferring Bickham & Moore.
The fifth instruction asked by the appellant should have been given. It places the right of Baldwin to the goods on the delivery of them to him, in trust for Bickham & Moore, before the levy of the attachment, and according to our view this is the true ground on which his claim rests.
It is not apparent that the case was litigated in the Circuit Court on this view, although the record presents it. The contention in the court below, as we infer from the instructions asked and the argument here, was as to the effect of the agreement not to record the deed of trust, and its being withheld from record, and the continuance of Parkman to sell the goods and replenish his stock of merchandise, and the effect of the deed and the surrender of the goods on it" on after-acquired goods.
We treat the deed of trust as though uot executed until the day it was filed for record, and regard the right of Baldwin as having sprung from the transaction which invested him with the possession and ownership of the goods, as trustee, for the payment of Bickham & Moore. That invested him with title,
The writing executed by Parkman on the surrender of the goods should be admitted in evidence as part of the res gestee.
Judgment reversed, new trial granted, and cause remanded.
In response to a suggestion of error by S. M. Shelton, of counsel for the appellees, the court made this addendum to the foregoing opinion : —
Per Ouriam. — The suggestion of error wrongly construes our opinion as indorsing and establishing the bona fieles of the dealings between Bickham & Moore and Parkman.
We did not so desire to be understood. On the contrary, our position is that the bona fides of the transaction must be submitted to the jury with all the facts laid before them ; and, further, that the right of Parkman to prefer Bickham & Moore was not lost by reason of the void trust-deed previously executed. The rights of the parties and the validity of the surrender to Baldwin are to be tested by the facts and circumstances existing at the date of that surrender. What preceded it may be valuable as shedding light on the subject, but cannot operate to determine it as a matter of law, nor deprive the debtor of the right to make an honest preference among his creditors. The trust-deed, being void, neither gave the grantees any rights nor deprived the grantors of any. It is receivable in evidence as indicative of intention, but not as necessarily fixing the rights of the parties or the legal effect of the surrender to the trustee.
Reference
- Full Case Name
- E. E. Baldwin v. Flash, Preston & Co.
- Cited By
- 3 cases
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- Syllabus
- 1. Attachment. Territorial limit as to power of justice of the peace. Writ returnable roithin less than five days. A writ of attachment was issued by the mayor of Jackson, ex officio a justice of the peace in the First District of Hinds County, returnable to the Circuit Court for the Second District of Hinds County, at Raymond. And the return-day named in the writ was within less than five days of the date of its issuance. It was levied and returned to the day named; and the defendant approved and consented to the entry of judgment against himself, both as to-the attachment and as to the debt. The property attached was claimed by a third person; and upon the trial of the claimant’s issue it was contended that the attachment was void because a justice of the peace of the First District of the county has no power to issue a writ to the Second District, and because the writ was returnable in less than five days. Held, that the objections are without merit. 2. Deed op Tbtjst. On goods to be acquired. Surrender to trustee. Effect as to attaching creditors. On the 5th of May, 1879, P., a merchant in business, executed a deed of trust on his stock of goods on hand and to be afterwards acquired, to secure the payment of his several promissory notes to B. & M. for a large sum of money in the aggregate, payable between the 15th of October, 1879, and the 15th of January, 1880. It was understood between the parties that the deed of trust should not he recorded, unless necessary to protect B. & M. against P.’s creditors. The deed was not recorded till the 29th of January, 1880; and on the same day P. surrendered his stock of goods to the trustee, which surrender was evidenced by a writing given by P. From the time of the execution of the deed of trust to the surrender of the goods P. conducted the business of selling and replenishing his stock, in the usual course of trade, for his own benefit. On the 30th of January, 1880, certain creditors of P. sued out an attachment against him, andliad the same levied on the goods in the possession of the trustee for B. & M. The defendant consented to the rendition of judgment against .himself, both as to the attachment and as to the debt. The-trustee for B. & M. presented a claimant’s issue, and upon the trial thereof!, the court, in effect, instructed the jury to find for the plaintiffs in a certain state of case, without regard to the fact of the surrender of the goods to the claimant. Held, that if the deed of trust was void as to the attaching creditors, P. had the right, independent of it, to deliver his goods to the trustee, in good faith, for the benefit of B. & M.; and the previous execution of the deed of trust, with the understanding- as to withholding it from record, and the conduct of B. & M. in pursuance of such understanding, could not deprive P. of his right to prefer their debts. The delivery, if bona fide, conferred title to the goods, and the deed of trust and the writing accompanying the delivery served to define the trust. 8. Same. Surrender' of goods to trustee. Contemporaneous writing as evidence. In the case above stated, the court excluded from the evidence the writing executed by P. on surrendering the goods. Held, that the writing was admissible as a part of the res gestee of the surrender, and should have been admitted as defining the trust. 4. Same. Surrender of goods to trustee. Levy of attachment. Instruction. In the trial of the above stated case, the court refused to give an instruction for the claimant to the effect that if the jury believed from the evidence that, prior to the levy of the attachment,.P. had delivered the goods in controversy to the claimant, as trustee, to sell the same and apply the proceeds to the payment of the debt due B. & M., then they should find for the claimant. Held, that the instruction should have been given. 5. Same. Validity of surrender of goods. How determined. Evidence. The validity of the surrender of the goods by P. to the trustee for B. & M., as above stated, is to be tested, as against the attaching creditors, by the facts and circumstances existing at the date thereof; which facts and circumstances should be submitted to the jury, whose province it is to determine the bona fides of that transaction. The deed of trust, though void, is admissible in evidence as indicating the intention of the parties; hut neither alone, nor together with the transactions preceding such surrender, coul'd it preclude P. from making an honest preference of B. & M. as his creditors, or necessarily fix the rights of the parties, or determine the legal effect of the surrender of the goods to the trustee.