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mayor, aldermen, etc., in brief, to lay out streets or wharves in front of those parts of the city which adjoin the East river, and from time to time to lengthen and extend said streets and wharves, to be completed at the expense of the proprietors of land adjoining or nearest; that such proprietors should fill up the spaces lying between their lots and such streets and wharves; and that upon so filling up and leveling the same they should become owners of said intermediate spaces of ground in fee-simple.

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On December 31, 1856, the mayor, alderman, etc., passed an ordinance establishing East street as an exterior street along this portion of the East river. Without stopping to inquire whether the ordinance, and the proceeding to acquire title under it, were valid under the act of 1813, but assuming them to be so, East street, as thus laid out, would cross Twentythird street along the westerly line of Avenue C extended; and the same ordinance directed the existing numbered streets to be extended to East street, and that the proprietors of lands nearest to or opposite East street, as thus established, should make and complete the street and fill in the intermediate spaces by January 1, 1860. Before this ordinance was ried into effect, the work was arrested by the action of the harbor commissioners, appointed under the act of March 3, 1855, whose report, confirmed by act of the Legislature, passed April 27, 1857, fixed the exterior bulk-head line in that vicinity, as it now exists, far within the proposed East street, and prohibited any solid filling in beyond this bulk-head line. This line is somewhat to the eastward of Tompkins street (since discontinued), and is between Avenue A and the extension of Avenue B. The Bower estate, it is claimed, acquired the fee of the land between Tompkins street and this bulk-head line of 1857, by filling in the intermediate spaces, as provided by the act of 1813; but as I must assume, it did not build either the Twentysecond street or the Twenty-third street piers, nor did it ever obtain any express grant from the city of the lots lying east of Tompkins street, or of any right of wharfage thereon. As incident to the land thus filled in, it is claimed that the Brower estate acquired riparian rights, and the rights of wharfage along the bulk-head. It is along this bulk-head, between Twenty-second and Twenty-third streets, that the complainant, as lessee, alleges that his riparian rights are threatened with injury.

As I have before said, none of the premises occupied by the complainant were any part of the original shore; they were a part of the harbor of the city of New York, and far below even low-water mark. Riparian rights do not attach, as a matter of course, to a grant of such lands under tide-water. A right of wharfage in such cases, as an incorporeal hereditament, must be derived either from the express terms of the grant, as in Langdon v. Mayor, etc., 93 N. Y. 129, 150, and in Marshall v. Guion, 11 id. 461, or from the clear and manifest intent of the grant, as shown by the surrounding circumstances, such as prior use, or the declared intention of the grant. Langdon v. Mayor, 93 N. Y. 129, 144; Voorhees v. Burchard, 55 id. 98; Huttermeier v. Albro, 18 id. 48. In the absence of an express grant of wharfage, or of such manifest intention, the city or the State, as the case may be, may make successive grants of its lands under water, each in front of the former, to different grantees, without any violation of the rights of either; and neither the first nor the last grantee will acquire any exclusive riparian privileges. None of such grantees are in any proper sense riparian owners at all; and riparian rights do not attach to such grants. Weber v. Harbor Comrs., 18 Wall. 57, 67. In this State where the common law on this subject prevails, and the State is owner of the soil below high-water mark, it was long since settled

that a grant of such lands, even with a right to erect a wharf expressed in the grant, was by implication of law not an exclusive grant of wharfage rights; but that such rights, so long as they were not wholly cut off, were subject to be modified and abridged through other grants and other harbor regulations for the public benefit, without compensation. Lansing v. Smith, 8 Cow. 146; 4 Wend. 9, 22-24. And in the case of Gould v. Hudson River R. Co., 6 N. Y. 522, it was held by the Court of Appeals that an owner of upland along high-water line on the Hudson river had no exclusive riparian rights below that line, and hence sustained no legal damage from a railroad embankment built under a grant from the State which cut off his access to the river. This decision has never been questioned as a rule of property in this State. See People v. Tibbetts, 19 N. Y. 523, 528; People v. Canal Appraisers, 33 id. 461, 487. It was cited, and its principles reaffirmed, in the recent case of Langdon v. Mayor, etc., supra, where the decision rested upon an express grant of wharfage rights.

As establishing a law of property, these decisions would be binding I think, under section 721 of the United States Revised Statutes, as rules of decision in the Federal courts, even if there was no authority in the Supreme Court on this subject. Barney v. Keokuk, 94 U. S. 338. But the decisions of the Supreme Court are of precisely the same effect.

In Yates v. Milwaukee, 10 Wall. 504 (relied on by the complainant's counsel), the rights of even a strictly riparian proprietor are declared to be "subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever these rights may be." But in the subsequent case of Weber v. Harbor Comrs., 18 Wall. 57, the Supreme Court held that a grant from the State of land under water in the harbor of San Francisco up to the exterior line of the bulk-head, where the city already had by law the control of the wharves and of wharfage rights, did not confer on the complainant any riparian rights as against the city; and his bill filed to prevent such rights from being wholly cut off was dismissed. That case in all essential particulars was analogous to the present. It is true that the complainant there had built out a wharf for his own use. But the complainant here claims certain exclusive privileges in the slip beyond the bulkhead, which involves the same principle. It was not there proposed to abate the complainant's wharf as a nuisance, but to surround it by a larger wharf, and appropriate it to the public use. Had the complainant there been held to have had any right to exclusive privileges along his bulk-head, he would have been entitled to his injunction or to compensation. But the court say:

"The complainant is not the proprietor of any land bordering on the shore of the sea in any proper sense of the term. * * * There is no just foundation for his claim as riparian proprietor. He holds, as bis predecessors took the premises, freed from any such appendant right. * * * They took whatever interest they obtained in subordination to the control by the city over the space immediately beyond the line of the water front, and the right of the State to regulate the construction of wharves and other improvements. * * * Having the power of removal (of the complainant's wharf), she could, without regard to the existence of the wharf, authorize improvements in the harbor, by the construction of which the use of the (complainant's wharf would necessarily be destroyed." Pages 65-67.

The same principles were again affirmed and applied in Barney v. Keokuk, 94 U. S. 324, and in the recent case of the Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 id. 672; S. C., 3 Sup. Ct. Rep. 445,

where it was held that a public street intervening between complainant's lots and the established river front cuts off any exclusive riparian rights in the owner of the lots on the opposite side of the street, whether the fee in the street be in the public or not, the complainant not having any express grant of wharfage rights.

The Federal decisions are in accord therefore with those of this State, so far as respects riparian rights attaching to grants of land under water in harbors or along navigable rivers. I find no case where any such exclusive rights are recognized, unless they are derived from the State or the city in express terms, or else by necessary implication from the circumstances of the grant. But if the act of 1813 and the ordinance of 1856 be looked to as sources of the grant of a right of wharfage, no allusion to wharfage or to any riparian rights, on the part of those filling in the intermediate spaces, is found there, except on condition of their having built the wharves or piers, which it is not here claimed that they did; and the whole tenor of both the act of 1813 and the ordinance of 1856 is manifestly inconsistent with the idea that the owners who should fill in the intermediate spaces were otherwise to acquire any right of wharfage, or even any title to lots to the water's edge, so as to become riparian owners at all. Under the ordinance of 1856, East street was to be an exterior street which would separate such proprietors from the water front, and under the act of 1813 an exterior street, like West street or South street, was also contemplated; but even had not such an exterior street been designed to intervene under the ordinance of 1856 and the act of 1813, to cut off any riparian ownership from those who might fill in the "intermediate spaces," still the act of 1813 itself manifestly confers on the city the right of wharfage on the wharves to be built out by it from the extended streets, and the control of wharfage rights. Subsequent acts have repeatedly confirmed this right. Langdon v. Mayor, 93 N. Y. 144, 145. The wharves form the slips; and without the protection of the wharves in the rapid tides of the East river, the bulk-heads themselves would be comparatively impracticable for use. The slips are so narrow, being not much above 200 feet wide, that the exercise of unrestricted rights of wharfage by an owner along the line of the bulk-head would moreover be plainly incompatible with the exercise of the same rights by the city upon its own wharves on each side of the slips. The slips formed by the wharves are appurtenant to and for the use and benefit of the wharves, and of the city which owns them, and of the public which is entitled to the full use of them; not for the use or benefit of the bulk-head own

ers.

parian rights; while the city is to take the benefit of the wharves which it builds, and with them the use of the slips for the purposes of wharfage. No intention to confer riparian rights on the owner of spaces filled in can be deduced from the act of 1857, which prevented the construction of the proposed exterior street.

As the estate of Brower therefore obtained no right of wharfage by the terms of any grant, nor by any intention of the city or State, from whom it derives title, it has not in my judgment any legal right, as | against the city or its grantees, to convert the bulkhead into a wharf, and maintain it as such as a means of private emolument; nor even any proprietary right to the use of the slip adjoining the bulk-head as a place for landing its own boats, to the exclusion of any necessary use by the public under the city or its lessees. It may doubtless land boats there by sufferance, as any other citizen might do; but it has no right to obstruct the use of the slip, or of any part of it, which may be required by the public in mooring boats along either the Twenty-second or Twenty-third street wharves up to the line of the bulk-head, nor to interfere with any other appropriate use of a wharf, such as a ferry landing, which the city and State may authorize.

This case differs from all others which have been cited in support of the injunction, in the fact that the complainant and those whom he represents have neither any title to the slip or to the land in front of the bulk-head, nor any express grant of a right of wharfage, nor any evidence of any intent by the State or city to grant such a right. The case of Lansing v. Smith, supra, as above observed, long since decided that even if wharfage had been granted, subsequent obstructions in front, necessary for the public convenience, were no grounds for a claim of damages, so long as access, though impaired, still remained. In the present case a basin of 145 feet long by the wharf will remain free along the upper part of the bulk-head; while the lower part, embracing more than one-half the complainant's frontage, will be completely open and unobstructed as before.

The papers before me do not show any legal rights in the complainant beyond this means of access still reserved to him by the proposed structures; and without referring to the other points raised, the motion should, upon the above ground, be denied.

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NEW YORK SUPREME COURT, GENERAL TERM. OCTOBER, 1884.

HAYES V. NEW YORK CENTRAL R. Co.

If a passenger upon a railroad train mislays his ticket, and acting in good faith fails to find it, until after the conductor rings the bell for the purpose of stopping the train and ejecting him; in an action against the carrier to recover damages for an unlawful ejection under such circumstances,

Without the full, and it may be exclusive use of the slips, the full use of the wharves cannot be enjoyed. If an owner along the bulk-head line can lawfully moor six, eight, ten, or even twenty canal boats at once along side the bulk-head, tier upon tier, as it is said the complainant sometimes has done, he may thus occupy the whole slip and exclude the public from the wharves altogether, and the city from its rightful wharfage and use of the slip. On the other hand, the full enjoyment of the wharves by the city or its lessees for wharfage purposes may, if the public needs require it, demand the use of the entire slip. There cannot exist therefore full riparian rights of wharfage in both parties at the same time. The act of 1813 leaves no possible doubt which of the two-the city which builds the wharves, or the owner who fills in intermediate spaces and thus becomes owner of the bulk-head lots-is intended to enjoy this right of wharfage. All that the act of 1813 gives to the latter APPEAL from judgment entered upon a nonsuit is the title to the "intermediate spaces; "an exterior street, as I have said, being contemplated by that act, which would exclude him from the enjoyment of ri

Held, that the omission to find and surrender the ticket or pay his fare before the bell rang is not equivalent to a refusal to do so.

Held further, that the passenger is entitled to a reasonable opportunity to find his ticket if he can, and in default to pay his fare, and it is a question of fact for the jury to determine whether or not such reasonable opportunity was allowed.

directed at Oneida Circuit, May, 1884, and from an order denying a motion for a new trial on the minutes. The action is brought to recover damages for

ejecting plaintiff from the train on its passage from Utica to Rome on the morning of September 11, 1881. At the close of the evidence defendant moved for a nonsuit which motion was granted and plaintiff excepted.

Oswald Prentiss Backus, for appellant, cited 80 N. Y. 230; 38 Conn. 557; Garrett v. Railroad Co., 3 R. Cases, 416; Curl v. C. R. I. & P. R. Co., 16 N. W. Rep. 69, 72, 73; Stephen v. Smith, 29 Vt. 160, § 52; 2 R. S. (Banks, 6th ed.) 540.

D. M. K. Johnson, for respondent.

MERWIN, J. Concededly the plaintiff had a ticket from Utica to Rome, that he had purchased the afternoon before. As to what occurred just prior to his ejection, there is a conflict of evidence. On the part of plaintiff, there was evidence tending to show that as the conductor came along and asked the plaintiff for his ticket he tried to find it and could'nt; told the conductor he had one and would find it in a minute; felt through his pockets, said to the conductor, "you go through the train and by the time you come back I will find my ticket, if I don't, I have money to pay my fare;" that the conductor said, "find your ticket or get off the train;" that the plaintiff said, "maybe you better put me off this train; " that then the conductor pulled the bell-rope to stop the train; that before it fully stopped the plaintiff found his ticket and offered it to the conductor who refused to take it and put the plaintiff off.

On the part of the defendant the conductor testified that the plaintiff was in the next to the last car; that as he came along he asked him for his ticket; that the plaintiff found what was apparently a ticket and the occurrence then proceeded as follows: "I asked him for his ticket; he said he would not give it to me until he got to Rome; I said if you don't give me that ticket I will have to put you off; he said I wont give it to you; I said very well, I will have to stop the train and put you off; I then rang up the train, the train stopped at once, then I told him to get out; he got up and walked out down on the ground, then he wanted me to take the ticket and I refused; I told him I had stopped the train to put him off and I wouldn't carry him; I didn't stop that train for any purpose except to have him get off; the rules are, ring up the train and put off a man who don't show his ticket or pay his fare."

The nonsuit was granted apparently upon the theory that as according to the plaintiff's evidence, the ticket was not produced and tendered before the bell was actually rung therefore the conductor was justified in putting the plaintiff off.

The counsel for defendant claims that the omission to produce the ticket was equivalent to a refusal, and brings the case within Hibbard v. N. Y. & E. R. Co., 15 N. Y. 455. In that case the plaintiff had a ticket from Hornellsville to Scio; had shown it to the conductor once, and then, afterward and after the train had passed another station, was asked to show it again and refused and was put off. It was held at Circuit that he was not bound to show it again; but the Court of Appeals held that he was, and that a rule to that effect was reasonable, and reversed the judg

ment.

In O'Brien v. N. Y. C. & H. R. R. Co., 80 N. Y. 236, it is said by Rapallo, J., that if in consequence of the fractious refusal of a passenger to pay the full fare the company has a right to demand, the train is stopped for the sole purpose of putting him off, he is not entitled to insist on continuing his trip on paying the fare, but may be removed from the train. If how ever the stoppage is at a station a tender before removal would answer. Guy v. N. Y., O. & W. R. Co.,

30 Hun, 399; Pease v. D. L. & W. R. Co., 16 W. Dig. 266.

In Maples v. N. Y. & N. H. R. Co., 38 Conn. 558, the rule is laid down that a passenger whose ticket is mislaid is entitled to a reasonable time to find it.

In Railroad Co. v. Garrett, 8 Lea (Tenu.), 438, it was held that a passenger who gets upon a train in good faith, in ignorance of the fact that a tax certificate would not pay his fare, having no intention to impose upon the carrier, cannot be treated as a mere trespasser, but on failure or refusal to pay his fare after request and after reasonable opportunity allowed to comply, he may be ejected, but if before eviction another person offer to pay the fare the carrier is bound to receive it and convey the passenger. The offer in that case was after the bell was rung to stop the train. In the present case if the ticket of the plaintiff was mislaid and he in good faith was trying to find it, he was entitled to a reasonable time to enable him to do so, if he could, and if in case of failure to find it after such reasonable opportunity he was willing and ready to pay his fare, the conductor had no right to put him off. Whether or not the plaintiff was allowed such reasonable opportunity to find his ticket or pay his fare was, upon the evidence on the part of the plaintiff, a question of fact to be determined by the jury. If so the nonsuit was improperly granted.

A question is made by the appellant that the removal was not at or near any dwelling house. This is not set up in the complaint, and no point was appar ently made about it at the trial. It does not seem important to consider it here.

The judgment should be reversed and nonsuit set aside and new trial granted, costs to abide the event. Hardin, P. J., and Follett, J., concur.

CHATTEL MORTGAGE RESERVING POWER TO

SELL.

SUPREME COURT OF ALABAMA, DECEMBER TERM, 1883.

BENEDICT v. RENFRO.*

The conveyance by an insolvent mortgagor of substantially all of his unincumbered property, consisting of an ordi nary stock of merchandise, with a stipulation for retention of possession, and with reservation of a power of sale for the mortgagor's own benefit, is void on the ground of its "inevitable tendency "to hinder and delay the creditors of the grantor.

Statutes providing for the recording of such instruments are a substitute for possession of the mortgagee, and repel any implication of fraud arising from the mortgagor's retention of possession, at least until the day of default, not unreasonably prolonged.

HE facts are sufficiently stated in the opinion.

THE

SOMERVILLE, J. No subject has perhaps been more discussed in the courts of this country, especially within the past few years, than the mortgage of stocks of merchandise, where the mortgagor is allowed, either expressly or by necessary implication, to retain posses sion with a reserved power of sale over the mortgaged property. The courts of the several States are in irreconcilable conflict on the question whether the reservation of such a power conclusively vitiates the instru ment for fraud, as matter of law, without regard to any specific intent to defraud, or whether it is a strong badge of fraud, furnishing only presumptive evidence of fraudulent intent as matter of fact for the jury,

*S. C., 3 Alabama L. J. 86.

and capable of being rebutted by proof to the contrary by one who seeks to uphold the conveyance. The decisions will be found fully collected and reviewed at length by the various text writers who have undertaken to treat of this particular subject. As well observed in Robinson v. Elliott, 22 Wall. 513, these cases "cannot be reconciled by any process of reasoning, or any principle of law." Jones Chat. Mortg., §§ 379 et seq.; Herman Chat.Mortg., §§ 100 et seq., p. 222; Mortg. of Merchandise (Pierce), §§ 33 et seq. 88 et seq.

The several decisious of this court touching this general subject are cited in Commercial Bank of Selma v. Brewer, 71 Ala. 574, and the rule so far established by them is stated to be that the conveyance by an insolvent mortgagor of substantially all of his unincumbered property, consisting of an ordinary stock of merchandise, with a stipulation for retention of possession, and with reservation of a power of sale for the mortgagor's own benefit, would be void on the ground of its inevitable tendency" to hinder and delay the creditors of the grantor. In this case it was considered not to be material that the fact of the mortgagor's insolvency was unknown to the mortgagee at the time of the execution of the conveyance. It was further added by the court that they might go further possibly, and declare the instrument void on the ground that it reserved a benefit to the grantors. Constantine v Twelves, 29 Ala. 607; Price v. Mazange, 31 id. 701; Wiley v. Knight, 27 id. 336.

In the absence of all registry laws the manual delivery of mortgaged personal property would be essential to the validity of the transaction. But statutes providing for the recording of such instruments are a substitute for possession of the mortgagee, and repel any implication of fraud arising from the mortgagor's retention of possession, at least until the day of default, not unreasonably prolonged. Herm. Chat. Mortg., § 100; Jones Chat, Mortg., § 380; Hopkins v. Scott, 20 Ala. 183. This has been justly said to be a concession to commerce made in obedience to the growing exactions of trade.

The objection urged in the present case is not to any stipulation, express or implied, for the mortgagor's retention of possession merely, but to an implied reservation of a power of sale in the mortgagor for his own use and benefit, and the argument is that this feature of the case operates to stamp the transaction with fraud.

The general principle is well stated by the Supreme Court of the United States in the case of Robinson v. Elliott, 22 Wall. 523, where it is said that "the creditor must take care in making his contract that it does not contain provisions of no advantage to him, but which benefit the debtor, and were designed to do so, and are injurious to other creditors. The law will not sauction a proceeding of this kind. It will not allow the creditor to make use of his debt for any other purpose than his own indemnity. If he goes beyond this, and puts into the contract stipulations which have the effect to shield the property of his debtor, so that creditors are delayed in the collection of their debts, a court of equity will not lend its aid to enforce the contract." This principle is as ancient in our jurisprudeuce as Twyne's case, decided nearly three centuries ago, where the doctrine was settled that the retaining of goods in possession by a vendor, with the power of trading with them as his own, rendered the sale fraudulent and void as against creditors. The reason assigned was that "he continued in possession, and used them as his own; aud by reason thereof he traded and trafficked with others, and defrauded and deceived them." 3 Coke, 80; S. C., Smith's Lead. Cas. (H. & W.) 33. The controlling principle of the case is that the possession of property, with the accompanying power of dominion aud disposition, is an incident of owner

ship, the right to which, in all honesty and justice, should be denied to any one except the absolute owner. The law therefore justly requires that all transfers or assignments of a debtor's property should be made in good faith for the purpose of paying or securing his debts, and "without any intent to lock up the property from creditors for the use of the debtor." Bump Fr. and Conv. (3d ed.) 399.

Our present statute is a strong affirmation of this principle of law, and was designed more effectually perhaps to carry into effect the doctrine of Twyne's case. It declares that "all deeds of gift, all conveyances, transfers and assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, are void against creditors, existing or subsequent, of such person. Code, 1876, § 2120.

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We proceed to apply these principles to the case in hand. The property here mortgaged is a stock of ordinary merchandise, a portion of which is shown to be of a perishable nature. The value of the goods is shown to be between four and six thousand dollars, and the amount of the mortgage debt the sum of three thousand dollars. The mortgagors were insolvent at the time of the execution and delivery of the instru ment, although this was not probably known to the mortgagees. The most that can be iuferred is that the financial embarrassment of mortgagors was known. The grantors in the conveyance do not appear to have owned any other property liable to the satisfaction of their debts. No express power is conferred on the mortgagors to sell the goods, but they were left in possession of them, and by implication it was clearly understood from the terms of the mortgage that they were to remain in possession until the day of default, which was ninety days from the date of its execution. "The implication is irresistible," as observed by Bynum, J., in Cheatham v. Hawkins, 76 N. C. 335, 337, "from the very nature of the business that they (the mortgagors) were to continue in selling and trading as before; otherwise why retain possession of goods which would be a dead incumbrance upon their hands without the power of disposition."

It would be an incredible supposition that the mortgagors, under the circumstances attending this case, were expected to refund this borrowed money by closing their doors and locking up their merchandise, thus entirely abandoning their business. Especially is this true in view of the fact that they did not pursue this course, but continued in possession, making sales of the goods as if they were their own, until arrested in this by the levies made by their various attaching creditors. It is a necessary conclusion that a power of sale was implied, and being implied, it was as much a part of the contract as if expressed. Freeman v. Rawson, 5 Ohio St. 1; Stanley v. Bunce, 27 Mo. 269; Herman Chat. Mortg. 235; Gardner v. Johnston, 9 W. Va. 403.

Such a power when vested in a mortgagee and accompanied with possession, obviously confers on him a dominion over the property which is utterly inconsistent with the continued existence of the lieu intended to be created by the mortgage. It is entirely repugnant to and subversive of such lien. The instrument contains within itself, in its very inception, the mechanism of its own sure destruction. The mortgagor remains practically the owner of the property, with the right to sell and appropriate it at pleasure without liability to account to the mortgagee, save at the mere option of the latter, which may never be brought into exercise until some other creditor seeks to call the debtor to account by levying upon the property. Such an instrument is therefore no valid security, but operates in the most effectual manner to shield the property from the attack of other creditors for the joint

benefit of the mortgagor and mortgagee, thus tending inevitably to hinder and delay such creditors. Herman Chat Mortg. 227-236; Mortg. of Merchandise (Pierce), § 33 et seq., § 155; Wiley v. Knight, 27 Ala. 336; Com. Bank Selma v. Brewer, 71 id. 574; Jones Chat. Mortg., § 382 et seq.; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. 270; Orton v Orton, 7 Or 478; 33 Am. Rep. 717; Cheatham v. Hawkins, 80 N. C. 161; Robinson v. Elliott, supra; Constantine v. Twelves, 29 Ala. 607.

A mortgage with such a power of sale, by which the mortgage debtor is enabled to sell at his option and appropriate the proceeds of sale to his own use, is, as we have said above, virtuallyla conveyance "made in trust for the use of the person making the same," within the meaning of the statute, and this feature of itself stamps the transaction with invalidity. Code, 1876, § 2120.

In construing this statute this court said in Reynolds v. Crook, 31 Ala. 634, that it is essential to the validity of every trust conveyance intended as a security that its "whole purpose" should be the devotion of the property bona fide to the indemnification of the creditor, and that "if a part of its purpose is that it shall avail or be reserved for the case or favor of the grantor it is void as to creditors." Miller v. Stetson, 32 Ala. 161. The principle is essentially akin to that which pronounces every conveyance void which reserves a power of revocation in the grantor. The power to sell the mortgaged property and appropriate its proceeds does not differ in effect from a reserved power to revoke in whole or in part.

In Riggs v. Murray, 2 Johns. Ch. 565, it was said by Chancellor Kent in a case of this character that the grantors had been "sporting with the property as their own," and the conveyance carried with it a necessary inference of a purpose to hinder, delay or defraud creditors. Such a power of revocation was said to be fatal to the instrument, and to "poison it throughout." It was very long ago held that a reserved power to mort. gage, or to sell as the grantor might deem fit, was tantamount to a power of revocation, and therefore vitiated a conveyance for fraud. Tarback v. Marbury, 2 Vt. 510; Mortg. Mer. (Pierce), § 154 et seq. All cases of this general class come within the evils intended to be reached by Twyne's case, where it was said that "fraud is always apparelled and clad with a trust, and trust is the cover of fraud."

The authorities are numerous in support of these views. The Supreme Court of North Carolina, in discussing the subject in Cheatham v. Hawkins, 76 N. C. 335, say: "The power to sell was the power to destroy, and the sale was the destruction and extinction of the property. If there were other unsecured creditors at the time of this assignment and no other property of the debtor than that conveyed in the mortgage out of which the creditors could make their debts, the fraudulent intent would seem to be irrebuttable. A clear benefit is secured to the debtor, and a clear right is withheld from the creditor beyond what the law permits. An assigument cannot cover up and preserve the property for the debtor's use, or protect it from the remedies and demands of the creditors. being no evidence to rebut the "presumption of fraud raised by the law," the mortgage was declared by the court to be void for fraud.

There

In the case of Tennessee National Bank v. Ebbert, 9 Heisk. (Tenn.) 154, a similar mortgage was decided to be void because it afforded such "facilities for fraud " as to stamp it as "wanting in legal good faith on the plain principle," as was said, "that every reasonable man is presumed to intend the probable consequences of his own acts. And besides," it was added, "there is clearly a benefit contracted for to the grantors on the face of the deed and a prejudice to the rights of other creditors."

In Collins v. Myers, 16 Ohio, 547, the court declared that to hold that such a mortgage was valid would furnish a complete shelter under which a man could carry on trade for his own benefit completely protected against the payment of his debts, and placed wholly beyond the reach of creditors." The property was said not to be "held by the mortgage, but by the will of the debtor, because if the debtor sees proper to dispose of it he has the power under the mortgage. For these reasons such a mortgage on his stock of mer chandise was decided to be "void as against the policy of the law."

In Mississippi such conveyances have been held void, among other reasons, "because of their susceptibility of abuse, by reason of the ease with which they may be employed for wrong purposes, to the injury of the creditors." Joseph v. Levy, 58 Miss. 843.

In more than one case they have been held void on the ground that they throw open a wide door for the easy commission of fraud, and are therefore contracts against public policy. Phelps v. Murray, 2 Tenn. Ch747; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. 270.

A large number of other adjudications on this subject could be cited giving forcible reasons in support of the doctrine that a reservation to the mortgagor of a discretionary power of sale under the mortgage, renders the mortgage fraudulent as against the creditors of the mortgage debtor. When this fact is made to appear, the better view seems to us to be that the convey. ance is void without regart to the existence of any actual intent to defraud. As forcibly observed by a recent author, "With the enactment of statutes granting a most liberal exemption of personal property, and the abolishment of laws for the arrest and imprisonment of debtors, a creditor has but a naked claim against the property of his debtor, and it should receive the most effective support, and every rule calculated to prevent a debtor from secreting or covering property should be sustained with courage and energy." Herman Chat. Mortg. 255.

We are not to be understood as intimating in this opinion that a mortgage of merchandise would be rendered conclusively invalid where the mortgagor is in good faith left in possession of the goods, with power to sell for the exclusive use of the mortgagee, holding the proceeds of sale for his benefit. In such cases he may well be deemed the mere agent of the mortga gee acting for him and in his behalf. Mortg. Merch. (Pierce) $$ 46, 49, 53; Conkling v. Shelley, 28 N. Y. 360; Fisk v. Harshaw, 45 Wis. 665; Tickner v. Wiswall, 9 Ala. 305.

Under the influence of these principles, it needs no further argument to show that the mortgage executed by Crumbey Brothers to the Renfro Brothers, on the 25th day of December, 1878, was fraudulent and void as against the appellants and other creditors of the mortgagors; that the chancellor erred in not so holding. The decree dismissing the bill filed by appellants is reversed, and the cause is hereby remanded, that further proceedings may be had in the Chancery Court, in accordance with the views expressed in this opinion.

[See ante p. 328; 32 Am. Rep. 621; 34 id. 265; 31 id. 178, note; 43 id. 270, 596; 39 id. 160; 30 Eng. Rep. 808. -ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

NEGOTIABLE INSTRUMENT - WHAT NOT- PAYMENT CONDITIONAL.-C. contracted with defendant to furnish and set the brown stone work for a certain house, which was in course of erection by defendant. For the purpose of procuring a credit from plaintiff for the

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