24 U.S.

78
6 L.Ed. 423
11 Wheat. 78

BROOKS
v.
MARBURY.
February 10, 1826

ERROR to the Circuit Court for the District of Columbia.

This is the same case which is reported ante, vol. VII. p. 566. The
judgment of the Court below was then reversed, and a venire de novo
awarded. At the new trial, exceptions were taken to the instructions given
by the Court to the jury; and the cause having again been brought before
this Court for revision, was argued by Mr. Jones and Mr. Coxe, for the
plaintiff, a and by the Attorney General and Mr. Key, for the defendant. b
Feb. 10th.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This case depends on the validity of a deed executed by Richard H. Fitzhugh on

the 31st of December, 1319, purporting to convey to the defendant, for the use
of certain enumerated creditors, his slaves, goods, and debts, which deed

They cited 6 Harris & Johns. Rep. 234. Hamilton v. Russell, 1 Cranch's Rep.
310. Hildreth v. Sands, 2 Johns. Ch. Cas. 35. Edwards v. Harlin, 2 Term Rep.
587.

They cited Marbury v. Brooks, 7 Wheat. Rep. 556. Wheaton v. Sexton 4 Wheat.
Rep. 503. Astor v. Wells, 4 Wheat. Rep. 466. Sands v. Hildreth, 14 Johns. Rep.
493. was recorded in the record book for the county in which the parties
resided, on the 3d of January, 1820. Immediately after executing this deed, the
said Fitzhugh absconded; and on the 10th of February thereafter, the plaintiff
sued out an attachment to attach his effects in the hands of the said Marbury.

The garnishee denies that he has any effects of the said Fitzhugh in his hands
which can be affected by the attachment, the same not being sufficient to satisfy
the creditors enumerated in the deed which has been mentioned. The plaintiff
contests the validity of that deed. The jury found a verdict in favour of its
validity, upon which the Circuit Court rendered a judgment against the plaintiff,
which he has brought before this Court by a writ of error. In the course of the
trial, exceptions were taken by the counsel for the plaintiff to some opinions
given by the Court, and to its refusal to give others for which they applied. The
correctness of the opinions given, and of the refusal of those not given, will
now be considered.
2

On the trial, the garnishee offered to read from the record books of the county,
the memorial of the deed which has been mentioned, to which the plaintiff
objected, and insisted that the original ought to be produced. The Court
overruled this objection, and the copy was read. To this opinion of the Court
the plaintiff's counsel excepted; and he now insists, that there is no law of the
State of Maryland which directs a deed of the description of that of which a
copy was read in this case, to be recorded; and that, if there were such a law,
still the original ought to be produced, if within the power of the party claiming
under it.

The act of 1729, ch. 8. enacts, 'that from and after the end of this session of
Assembly, no goods or chattels whereof the vendor, mortgagor, or donor, shall
remain in possession, shall pass, alter, or change, or any property thereof be
transferred to any purchaser, unless the same be by writing, and acknowledged
before one provincial Justice of the county where such seller, mortgagor, or
donor, shall reside, and be within twenty days recorded in the records of the
same county.'

The counsel for the plaintiff insists, that this law directs the recording of those
deeds only which convey property of which the donor remains in possession,
and that the possession in this case must be supposed to have passed with the
deed, unless the contrary be shown.

This objection is not without its weight. It, however, does not appear to have
been suggested at the trial, and probably did not occur to the Court or the
parties at the time, or it might have been shown that in point of fact the
possession was not immediately changed. Since, however, the admission of the
evidence was not made to depend on the circumstance of possession, this
objection cannot be overlooked.

It has been, also, contended by the plaintiff, that if possession did not

It has been, also, contended by the plaintiff, that if possession did not
accompany and follow the deed, it is void as to creditors under the authority of
the case of Hamilton v. Russel, (1 Cranch's Rep. 310.) On this point, it may be
proper to observe, that in Hamilton v. Russel, the deed purported to convey the
property to the vendee for his own immediate use, and the subsequent
continued possession of the vendor was incompatible with the instrument. This
is a deed of trust, not for the benefit of the person to whom it is made, but for
the benefit of certain enumerated creditors. The continuance of the possession
with the donor until the trust can be executed, may not be so incompatible with
the deed as to render it absolutely void under all circumstances. The Court does
not mean to express any opinion on this point, farther than to say, that it is not
supposed to be decided in Hamilton v. Russel.

Should the act of 1729 be considered as applying to this case, the question
would then arise, whether the copy of a deed be admissible where the original
is in the power of the party offering the copy. This would be contrary to the
great principle, that the best evidence which the nature of the case admits of
ought to be required. But, it has been said, in answer to this objection, that the
Courts of Maryland have so decided. This Court will certainly respect the
decisions made in the State; but we are not satisfied that the principle is settled.
In the case cited from 6 Harris & Johnson, 234. the question arose on the
conclusiveness, not on the admissibility, of the evidence. The suit was on an
administrator's bond, and Mr. McGruder said, in argument, that the law
requires such a suit to be brought on a copy of the bond. Of course, such copy
must be admissible. It is true, that in deciding against its conclusiveness, the
Court said, generally, that a copy is prima facie evidence in all cases where the
law directs an instrument of writing to be recorded. This is the assertion of a
general principle, not the construction of a particular act, and we understand
that the Courts of Maryland have not adhered uniformly to the principle thus
laid down. There is some contrariety of opinion on this point; but the majority
of the Court conceives that the copy should not have been read, without
showing that the original was not in the power of the party.

Although the judgment of the Circuit Court must be reversed for error in
admitting improper testimony, yet, as the record presents other points which
must again arise, and which have been fully argued, this Court will proceed to
indicate its opinion on those points.

The deed having been admitted, its validity came on to be discussed.

10

Richard H. Fitzhugh had made notes to a very considerable amount, and had
forged the names of endorsers thereon; after which, he had discounted them in

the banks of Georgetown, and of this city. The proceeds of the deed were to be
applied, in the first instance, to the payment of these forged notes; after which,
the residue was for the benefit of the creditors generally. It is understood that
there is no residue; and that if the deed be valid, the debts due to the favoured
creditors will be paid to the exclusion of all others; if it be invalid, the whole
proceeds must be paid to the attaching creditors in the order in which they
stand, to the exclusion of those for whose benefit the deed was made, and of
those attaching creditors also for whom nothing shall remain after satisfying
prior attachments. It is, then, a mere question of legal preference, unmixed with
any equitable considerations whatever.
11

It is contended by the plaintiff, that the deed is void, because the consideration
is illegal, it being given for the purpose of suppressing a prosecution for a
felony.

12

The testimony in the cause was abundantly sufficient to justify the jury in
drawing the inferences, that the deed was executed by Fitzhugh in the hope that
payment of the forged notes would enable him to escape a prosecution; and that
the same hope was entertained by Marbury. It is not doubted, that had there
been any previous communication with the banks which led to this hope, or any
evidence that the prosecution was not instituted in consequence of the notes
being paid, or that their payment was to depend on a forbearance to prosecute,
the deed would have been against the policy of the law, and utterly void. But,
the evidence stated in the case, and the opinions which were given, as well as
those which were refused by the Court, present the question whether assuming
the entire innocence of the favoured creditors, the deed to Marbury is annulled
by any hope which might have lurked in the bosoms of both the grantor and
grantee, that the payment of the notes it was intended to secure, might save
Fitzhugh from a prosecution.

13

This case has once already been before this Court, on a writ of error to a
judgment of the same Circuit Court, made in favour of the attaching creditor,
which judgment was reversed. c But, although the facts were the same, the
opinions on which the case depended were essentially different from those
which are now to be considered. The case wears a new aspect in many respects,
and stands on principles which are not absolutely the same. Although any point
already determined, will not be changed lightly or inconsiderately, yet, we
think, that the decision in the former case does not positively determine this.

14

The first exception is to an opinion given on the prayer of the defendant. The
Court instructed the jury, 'that if they believed, from the evidence, that Richard
H. Fitzhugh executed the deed in question, and William Marbury accepted the

same, without the concurrence or knowledge of the banks mentioned in the

deed; and that the said banks assented to the same without any engagement,
express or implied, to suppress or forbear the prosecution of the said Fitzhugh,
then the plaintiff is not entitled to recover.' To this instruction given by the
Court to the jury, the counsel for the plaintiff excepted.

7 Wheat. Rep. 556.

15

The case assumed is, that the deed was executed 'without the concurrence or
knowledge of the banks.' At the time of its execution, then, they cannot be
considered as having in any manner participated in it. The terms exclude any
agency whatever on their part in obtaining it. The case proceeds, 'and that the
said banks assented to the same without any engagement, express or implied, to
suppress or forbear the prosecution of the said Fitzhugh.' This branch of the
statement supposes equal innocence on the part of the banks when the deed was
accepted. The case put is, that they had entered into no express or implied
engagement to suppress or forbear the prosecution. This certainly left the jury
at full liberty to infer an understanding between Marbury and the banks, which
is an implied engagement, from the fact that they forbore to prosecute when it
was in their power to do so, if such was the fact. It left the jury at full liberty to
draw this inference from any language or conduct of the favoured creditors,
either before or after the deed was accepted, which, in their opinion, would
justify it. If, then, the Court erred in giving the instruction, that, in such a state
of things, the plaintiff was not entitled to recover, it is because the belief on the
part of Fitzhugh and Marbury, that the payment of the forged notes might save
Fitzhugh from a prosecution, although such a belief was unauthorized by those
for whose benefit the deed was made, and was not communicated to them,
vitiates the conveyance, so that nothing passed by it.

16

The general principle, that notice to a trustee, or an agent, is notice to the cestui
que trust, or to his employer, is too well settled to be drawn into question. But,
the case put to the Court, does not suppose Marbury to be the trustee or agent of
the creditors. He is the trustee and agent of Fitzhugh, to perform an act for him
which his situation disabled him from performing in person. This act was
entirely consistent with law; it was to sell his property, and apply the proceeds
to the payment of creditors of a particular description in the first instance, and,
afterwards, to creditors generally. His right to give the preference is not
questioned, nor is the validity of the consideration, so far as it moved from the
creditors, infected with any vicious principle, or in any manner brought into
doubt. A contract, the consideration of which is the compounding of felony, is

admitted to be void; and if this conveyance had been induced by such

composition, or the promise of it, or had depended on it, the fact that it was
made for the payment of debts justly due, would not have secured it from the
effect of this contaminating ingredient. But no such ingredient enters into the
case. Every thing on the part of the creditors, or of any person acting for them,
or by their authority, is unexceptionably fair and legal. The plaintiffs rest their
claim to set aside this deed, on the expectations which Fitzhugh and his agent
had formed of its operation on the conduct of the creditors, although the
proceedings under the deed were not to be influenced by the success of failure
of their hopes. The case put in this prayer for the instruction of the Court, does
not, indeed, suppose such expectations; but as it does not exclude them, and as
the instruction to the jury is, that the plaintiff cannot recover, whatever
inferences they may draw from the testimony, not inconsistent with those
which the Court supposes to decide the cause, it becomes necessary to inquire
whether these expectations vitiate the deed.
17

It cannot be questioned, that Fitzhugh might have sold his property, and paid
the proceeds to the banks, and that such sale and payment would not have been
vitiated by any expectation he had formed that it might save him from a
prosecution. Had he communicated this expectation to the purchaser, told him
the use he intended to make of the money, and that his motive for preferring the
holders of these forged notes to other creditors, was the hope, that on receiving
payment, they might be less active in the prosecution, would this have rendered
the sale a nullity? We cannot conceive that such a communication would have
affected the transaction.

18

Had Fitzhugh conveyed his property directly to the banks, in trust, to sell it for
the payment of these notes in the first instance, so that their right became
absolute, without any engagement, express or implied, to suppress or forbear a
prosecution, and without any previous or simultaneous communication with
them, would the hope cherished in his own mind, that this payment might
operate in his favour with them, avoid the transaction? We can perceive no
reason for giving such an effect to a latent hope which could have no influence
on those to whom it was not communicated. If, then, this very transaction,
passing directly between Fitzhugh and the banks, would have been legal, why
should it be rendered illegal by the agency of Marbury, who was employed by
Fitzhugh, and who was impelled by the same motives which influenced his
principal? If Fitzhugh might have conveyed directly to the banks, with power to
sell for their own benefit, why might he not convey to Marbury, with power to
sell, and pay the money to the banks? If a real distinction exists between the
cases, we are incapable of perceiving it.

19

The preference of creditors of a particular description, over others, being one

which a debtor has a right to make, the sale of his property, and the payment of
the proceeds to such favoured creditors, being an act which the debtor may
perform by himself or his agent, we cannot conceive, that the motives which
may have induced the preference, although communicated to the agent, can, in
reason, affect the transaction, provided nothing has occurred on the part of the
creditors, which is in any degree exceptionable, either in law or justice.

20

It has been said, that this deed, as between Fitzhugh and Marbury, is fraudulent,
and that no person, however, innocent, can take any thing under a fraudulent
deed.

21

This proposition is certainly laid down too broadly. That deeds which are
absolutely void cannot be the foundation of title, or that a cestui que trust can
claim nothing under a deed which is fraudulently obtained by his trustee, or
agent, acting by his authority, need not be controverted; but that a principal and
his agent, meditating, as the probable consequence of their act, an object
forbidden by the policy of the law, cannot, because the one has conveyed to the
other in furtherance of this design, sell to a fair creditor, or for the benefit of a
fair creditor, not participating in their views, or cognizant thereof, is more than
this Court is prepared to say.

22

The counsel for the plaintiff suppose, that this proposition is sustained by the
opinion of Chancellor Kent, in Hildreth v. Sands and Others, (2 Johns. Ch.
Rep. 35.) Any opinion expressed by that Judge is, undoubtedly, entitled to great
attention, and will be highly respected by this Court. In that case, the
Chancellor said, 'If the deed is admitted to be fraudulent on the part of Comfort
Sands, the grantor, there would be difficulty in allowing the deed to stand, even
if the grantee was, as he alleges, innocent of the fraud.'

23

This expression of Chancellor Kent must, undoubtedly, be understood in

reference to the case in which it was used. He has not said, nor could he mean
to say, that in every possible case, a fraudulent intent on the part of the grantor
would avoid a deed to a bona fide purchaser for a full and valuable
consideration, having no knowledge of the fraud. He has only said, that if the
particular deed in that case be admitted to be fraudulent on the part of the
grantor, there would be difficulty in allowing it to stand, even if the grantee was
ignorant of the fraud. An opinion in a particular case, founded on its special
circumstances, is not applicable to cases under circumstances essentially
different. In the case in 2 Johns. Ch. a deed from Comfort Sands, to his brother
Robert, was declared to be fraudulent and void, because, 1. The consideration

was inadequate. 2. The was no proof that the consideration was paid or secured.
3. The grantor continued in possession, exercising acts of ownership. 4. That
there were many circumstances attending the execution of the deed, showing
that it was not a bona fide sale. The bill had been taken for confessed against
the grantor, but the grantee had denied fraud. In this case, the Chancellor said,
that if this deed is admitted to be fraudulent on the part of the grantor, there
would be difficulty in allowing it to stand, even if the grantee was innocent.
But, in this case, the grantor and grantee were the sole parties. The vice of the
deed was in its consideration, in its not being intended or used as a bona fide
transfer of other property, and in other circumstances, in all which the grantee
necessarily participated. The Chancellor did not decree, nor did he think himself
justifiable in decreeing, against the grantee, on a bill taken for confessed against
the grantor. Yet, this circumstance established the fraud of the grantor as
completely at it could be established by testimony. Why did he not proceed
upon this fact. The reason is, that it would not sustain a decree against the
grantee. We think that this declaration has been pressed much farther in
argument than the eminent Judge who made it would be willing to carry it.
24

The opinion, that Chancellor Kent intended to confine this observation to the
particular case, is strengthened by a reference to the authority on which he
relies. He cites Huguenin v. Baseley, (14 Vesey's Rep. 273.) in which case the
Lord Chancellor said, 'With regard to the interests of the wife and children of
the defendant, there was no personal interference on their part in the
transactions that have produced this suit. If, therefore, their estates are to be
taken from them, that relief must be given with reference to the conduct of
other persons; and I should regret that any doubt could be entertained whether it
is not competent to a Court of equity to take away from third persons the
benefit which they have derived from the fraud, imposition, or undue influence
of others.'

25

These expressions were used in a case in which Baseley had obtained from
Mrs. Huguenin, by means which the Court pronounced fraudulent, a settlement
of her estate, after her death, upon himself, his wife, and children. No
consideration moved from the wife and children. They were volunteers
claiming under a fraudulent deed, obtained by a husband and a father, acting for
their interests as well as his own. In this case, the Chancellor said, 'He should
regret that any doubt should be entertained whether it is not competent to a
Court of equity to take away from third persons the benefit which they have
derived from the fraud, imposition, or undue influence of others.' We should
join in that regret. But, the distinction between a declaration that a third person,
a mere volunteer, claiming under a deed fraudulently obtained by a person
acting for his interests. can be reached by a Court of equity, though such

volunteer had 'no personal interference in the transaction,' and a declaration that
every person claiming under such a deed for a valuable consideration, though
entirely untained by the fraud, and unconnected with those concerned in it,
must, necessarily, lose his property, is too obvious not to be perceived.
26

The cases cited by the Lord Chancellor, in support of his opinion, which are
also referred to in Hildreth v. Sands, are all cases in which the third person
affected by the fraud claimed as a volunteer, and was, in some measure,
connected with the party practising the imposition. The mischief which these
decisions were intended to reach, was the attempt (to use the language of Lord
Chief Justice Wilmot) 'to purify the gift, by partitioning and cantoning it out
amongst his relations and friends.' That a question could exist in such a case,
furnishes a very strong argument in favour of the parties claiming under this
deed.

27

The very respectable opinion, then, of Chancellor Kent, does not bear upon this
case, nor have we found in the books any decision which does bear upon it, so
as to affect the creditors who claim under the deed of the 31st of December,
1819. We think, then, there is no error in this first instruction given by the
Court to the jury.

28

The counsel for the plaintiff moved the Court to instruct the jury, 'that if they
should be of opinion, from the evidence, that the deed was devised and
executed by Fitzhugh, and procured and accepted by Marbury, with the motive
and intent, and for the purpose and object, of suppressing a prosecution against
said Fitzhugh, by prevailing with the holders of the said forged notes to forbear
and forego a prosecution for the said forgeries; that then the said deed is
fraudulent, and void in law, as against the plaintiff.'

29

In discussing the propriety of refusing to give this instruction, it may be proper

to observe, that there is no error in rejecting a motion of this description, unless
it ought to have prevailed in the very terms in which it was made. Nor is a
Court to be required to give opinions on abstract propositions not supported by
any evidence in the cause. The language in which counsel addressed this
application to the Court, presents different ideas to the mind, and is susceptible
of different constructions. The Court is required to say, that the deed is void if
executed by Fitzhugh, and procured and accepted by Marbury, with the intent
of suppressing the prosecution, by prevailing with the holders of the said
forged notes to forbear and forego a prosecution for the said forgeries. If this
was to be the effect of the deed itself, unaccompanied by any stipulations which
were to be the condition of its application to the purposes for which it professes
to be made, then the instruction would have contradicted that previously given,

and was properly withheld. But, if the counsel is to be understood as praying

the Court to say, that if the deed was to be used by Marbury, as an instrument
by which to procure the suppression of the prosecution, that being the condition
on which the holders of the forged notes were to entitle themselves to its
advantages, it was fraudulent and void as to the plaintiff, there can be no doubt
that the instruction ought to have been given, unless the Court was satisfied that
there was no evidence in the cause to which it could apply.
30

The second motion is, in substance, that if the jury find, from the whole
evidence, that the deed was executed for the intent and purpose
aforementioned, and that the preferred creditors accepted the agency of the said
Marbury, and adopted his act in procuring and accepting said deed, it is
competent to the jury to infer a notice, either actual or constructive, to the said
preferred creditors, through their said agent, of the illegal consideration, intent,
and object, of the said deed.

31

This instruction was refused, because there was, in the opinion of the Court, no
evidence to authorize the conclusions of fact, in the making of which the law
was to arise. There was no error in refusing it on this ground. There would have
been error had there been testimony in the cause to authorize the conclusions of
fact assumed. The counsel also moved the Court to instruct the jury, that if the
preferred creditors named in the said deed, or any other creditors of the said
Fitzhugh, have not accepted or claimed any benefit under it, and that the same
remains the mere act of Marbury and Fitzhugh, without any participation
before or after, on the part of the preferred, or other creditors of the said
Fitzhugh, then the said deed is fraudulent and void as against the plaintiff.

32

The Court refused to give this instruction. In discussing the propriety of this
opinion, it becomes necessary to inquire whether the deed remained imperfect,
passing nothing in law to Marbury, until it received the assent of the creditors.
Upon its face it purports to transfer the property immediately, without any act
on the part of the creditors or others. It is incumbent on the plaintiff to show
that this is not its legal operation.

33

It will be very readily conceded, that, had the creditors disclaimed the
advantages proffered to them in this deed, or looked on as unconcerned
spectators while the property was applied by Marbury to the use of Fitzhugh,
these, or other circumstances tending to show that the deed was not made in
good faith for the purposes expressed in it, would have induced a Court of
Chancery to set it aside, or have justified a Court of law in instructing a jury to
consider it as fraudulent. But nothing of this sort is alleged. The single inquiry
is, whether the assent of the creditors be necessary to the completion of the

deed. If it be, then the title to the property it purported to convey remained in
Fitzhugh until such assent should be given, and might be subjected to this
attachment. If the instrument was complete without such assent, then the
property passed immediately to Marbury for the purposes of the deed, and did
not remain liable to attachment.
34

Deeds of trust are often made for the benefit of persons who are absent, and
even for persons who are not in being. Whether they are for the payment of
money, or for any other purpose, no expression of the assent of the persons for
whose benefit they are made, has ever been required as preliminary to the
vesting of the legal estate in the trustee. Such trusts have always been executed
on the idea that the deed was complete when executed by the parties to it. The
counsel for the plaintiff could mean no more than to insist, that the omission of
the creditors to assent to the deed; or claim under it, was such evidence of
fraud, that the jury ought to find it fraudulent. Let this circumstance be
examined.

35

Real creditors are rarely unwilling to receive their debts from any hand which
will pay them. No such unwillingness can be gratuitously ascribed to the
holders of forged notes. Unless there be proof to the contrary, the banks must
be considered as willing to receive payment from Mr. Marbury, or any other
person, from the proceeds of the sales of this property, or from any other fund.
This deed was executed on the 31st day of January, 1819, and the attachment
was sued out on the 10th of February, 1820. Time was required to sell the
property, and to collect the proceeds of the sales. It is not alleged, in the
statement, on which the opinion of the Court was prayed, that any notes fell due
before the attachments were issued, and remained unpaid. These circumstances
do not, we think, afford any ground for the presumption that the deed was
fraudulent, so that the property it purported to convey was, on the 10th of
February, the property of Fitzhugh, and, consequently, liable to be taken by this
attachment.

36

The counsel for the plaintiff then moved the Court to instruct the jury, that if
the great majority in number and value, of the creditors of the said Fitzhugh,
were, by means of said deed, unjustly and purposely hindered, delayed, and
defeated, in their proper suits and remedies, for the recovery of their said debts,
on the absconding of Fitzhugh, and that the deed was executed with the
purpose of defeating all legal recourse in behalf of such majority of creditors
against the property and effects which said Fitzhugh intended to leave behind,
and did leave behind him, then the said deed is fraudulent and void. This
instruction also was refused.

37

The right of a debtor to prefer particular creditors, where no bankrupt or other

law prohibiting such preference exists, is not questioned. Yet, such preference
defeats all other creditors, whether they amount to a majority in number and
value or not. The Court ought not to have left it to the jury to defeat this right,
because they might think it unjust. The instruction prayed by the counsel, if
given, would have defeated it.

38

The last prayer of the plaintiff supposes, that the deed was obtained for the
purpose of being used as the means of suppressing the prosecution; and,
farther, that Marbury acted as the agent of the preferred creditors. The refusal
of the Court to give this instruction, must have been founded on the opinion,
that the question was entirely abstract in its nature. If there was any evidence
tending to this conclusion, which ought to have been submitted to the jury, the
instruction ought to have been given. But if there was no such evidence, the
Court could not be required to say, hypothetically, what would be the law had
the evidence existed.

39

This Court is of opinion, that the Circuit Court erred, in admitting the record of
the deed offered in evidence, to be read to the jury, without any evidence that
the original was not in the power of the party offering the copy. The judgment,
therefore, is to be reversed, and the cause remanded to the said Court, with
directions that the verdict be set aside, and a venire facias de novo be awarded.d

The general principle that, in the absence of any express provisions of a

bankrupt law applicable to the case, a debtor has a right to prefer one creditor to
another, by actual payment, or a transfer to the creditor himself, or by an
assignment in trust, if the creditor be a party to the assignment, or subsequently
assents thereto, has been settled in a variety of cases in the different Courts of
this county, both State and of the Union. (Hatch v. Smith, 5 Mass. Rep. 42.
Putnam v. Dutch, 8 Mass. Rep. 287. Widgery v. Haskell, 5 Mass. Rep. 144.
Stevens v. Bell, 6 Mass. Rep. 339. Thomas v. Goodwin, 12 Mass. Rep. 140.
Cushing v. Gore, 15 Mass. Rep. 74. Meeker v. Wilson, 1 Gallis. Rep. 419.
Brown v. Minturn, 2 Gallis. Rep. 557. M'Menomy v. Ferrers, 3 Johns. Rep. 72.
Wilkes v. Ferris, 5 Johns. Rep. 335. Phoenix v. Ingraham, 5 Johns. Rep. 412.
Hendricks v. Robinson, 2 Johns. Ch. Rep. 283. Murray v. Riggs, 15 Johns. Rep.
571. Austin v. Bell, 20 Johns. Rep. 442. Wilt v. Franklin, 1 Binn. Rep. 502.
514. Bird v. Smith, 4 Dall. Rep. 85. in note. Lippincott v. Barker, 2 Binn. Rep.
186. Marbury v. Brooks, 7 Wheat. Rep. 556.)

40

The resulting trust, or residuary interest, remaining to the assignor, after the

40

The resulting trust, or residuary interest, remaining to the assignor, after the
purposes of an assignment for the payment of debts are satisfied, does not avoid
the deed, unless it be made mala fide, and for the sake of the resulting trust; nor
is such interest liable to execution against the grantor's property. (Wilkes v.
Ferris, 5 Johns. Rep. 336.) But, where an assignment was made in trust, (1.) To
pay certain preferred creditors; (2.) To pay the other creditors of the assignor on
condition of their releasing their demands; (3.) In case any of them should
refuse to release, then in further trust to pay such of the creditors of the assignor
as he should appoint. Certain of these creditors refused, obtained judgment, and
levied on the property in the hands of the trustees: It was held, that the trust
failing as to them, resulted for the benefit of the assignor, and the deed was,
therefore, void, by the statute of frauds, as to the other creditors; and being void
in part, was void in the whole. (Hyslop v. Clark, 14 Johns. Rep. 458.) But an
assignment by a debtor, in trust, with a power of revocation, is fraudulent only
as regards judgment creditors, or such as are taking measures to recover their
debts by suit. (Murray v. Riggs, 15 Johns. Rep. 571. 588.) It would, therefore,
seem, that an assignment like that in Hyslop v. Clark would be good, if the new
appointment were made before any creditor refusing to discharge had obtained
a judgment, or brought a suit. It could not, then, be said to be made to 'delay,
hinder, or defraud creditors,' according to the language of the statute of frauds
of Elizabeth. Thus, where A., on the 23d of March, 1798, assigned property to
B., in trust, to pay him, and certain other creditors, with a power of revocation,
and to appoint new trusts, and, on the 31st of May, 1800, executed an
irrevocable deed to B., in trust, having before made several intermediate deeds,
all in relation to the same subject, and reserving the same power of revocation;
it was determined, that the last deed was valid, and might be taken in connexion
with the first, and no rights of creditors having intervened, the first deed was
confirmed by the last. (Murray v. Riggs, 15 Johns. Rep. 571. 588.) And it has
been held in the State of New-York, that the deed of assignment may exclude
from its benefits such creditors as neglect or refuse to assent to the assignment
within a limited time, throwing the distributive shares, to which they would
have been entitled, into the general mass, for the benefit of the other creditors
provided for by the deed. (S. C. ib.) But, if the deed, instead of merely
excluding the dissenting creditors, and throwing their shares into the general
mass, reserves the shares of the dissenting creditors, and directs them to be paid
to the grantor himself, the deed of assignment is fraudulent and void. (Austin v.
Bell, 20 Johns. Rep. 442.) In Massachusetts, it seems, that an assignment in
trust for such creditors as should, within a certain time, become parties to the
deed, and release their demands, is void as against the dissenting creditors.
(Ingraham v. Geyer, 13 Mass. Rep. 146. But see Hastings v. Baldwin, 17 Mass.
Rep. 552.) In Pennsylvania, the rule to be extracted from the decisions seems to
be, that where no definite time is limited, or a period very remote, within which
the assent of creditors is to be given, the assignment is considered as

fraudulent. But, where a reasonable time is limited, within which the trust
property is to vest in those for whom the beneficial interest was intended, it is
valid. (Whart. Dig. tit. Deed, I. pl. 70. 76.)
41

In the case of Murray v. Riggs, (15 Johns. Rep. 571. 588.) it was held by the
Court of Chancery, and the Court of Errors of New-York, that a reservation, in
the assignment, of a sum sufficient for the maintenance of the assignor until
discharged from his debts, does not invalidate the assignment; though, in case
of a deficiency, the creditors are entitled to have the part reserved applied in
satisfaction of their debts. But, in the recent case of Mackie v. Cairns, which
has not yet been reported, it was determined, that such a reservation rendered
the conveyance totally void.

42

As to the question how far the fact of the possession of the property assigned,
still continuing in the grantor, would affect the validity of the deed, it seems to
be generally considered, that if the possession of the grantor be consistent with
the deed, as when the possession is continued at the request, and for the benefit
of the assignees, for their convenience in making the sale, or where the property
is at sea, or out of the country, if possession is taken by the trustees within a
convenient and reasonable time, the conveyance will be valid. (Vredenberg v.
White, 1 Johns. Cas. 156. Meeker v. Wilson, 1 Gallis. Rep. 419. Dawes v.
Cope, 4 Binn. Rep. 258. Wilt v. Franklin, 1 Binn. Rep. 517. Putnam v. Dutch, 8
Mass. Rep. 287. Lippincott v. Barker, 2 Binn. Rep. 174.) So, a delivery of the
key of the warehouse in which the goods are stored, is a sufficient delivery to
transfer the property. (Wilkes v. Ferris, 5 Johns. Rep. 335.) So is a delivery of
the receipt of the storekeeper for the goods, it being the regular documentary
evidence of the title. (Ib.)

43

As to the effect of an assignment for the benefit of creditors, (whether under a

bankrupt law, or a voluntary private assignment, valid by the lex loci,) on
property, or the rights of creditors, in another state or country than that where
the assignment is made, see Hatch v. Smith, 5 Mass. Rep. 42. Widgery v.
Haskell, 5 Mass. Rep. 144. Harrison v. Sterry, 5 Cranch's Rep. 289. Ingraham
v. Geyer, 13 Mass. Rep. 146. Le Chevalier v. Lynch, Dongl. Rep. 170. Hunter
v. Potts, 4 Term Rep. 182. Milne v. Morton, 6 Binn. Rep. 353. Burke v.
M'Clain, 1 Harr. & M'Henry's Rep. 236. Taylor v. Geary, Kirby's Rep. 313.
Wallace v. Patterson, 2 Harr. & M'Henry's Rep. 463. Ward v. Morris, 4 Harr.
& M'Henry's Rep. 330. This point was much discussed in the case of Holmes v.
Remsen, 4 Johns. Ch. Rep. 460. S. C. 20 Johns. Rep. 229. where all the
authorities on the subject will be found collected. Even after these very learned
and able discussions, it must still be considered as an unsettled question of
international law.