Page:Federal Reporter, 1st Series, Volume 1.djvu/779

 BÀBTLETT ». TBAH. 771 �absolutely for the purpose of raising a f und to pay debts ; and, if valid, it passed the absolute title, legal and equitable, to the grantors in the deed, subject to the trust, and placed the Bame beyond the reach of the debtor, as well as her creditors, until the purposes of the trust were satisfied. When the debts were paid the debtor had a right to the surplus, but until that was done she had no legal or equitable interest in the prop- erty, or its proceeds, that could be sold or encumbered or seized on attachment or execution by her creditors. Briggs v. Davis, 21 N. Y. 577; Hoffman v. Mackall, 5 Ohio St. 124; Crittenden V. Johnson, 11 Ark. 94; Pettit v. Johnson, 15 Ark. 55; Tumer V. Watkins, 31 Ark. 437. �Is the instrument valid as an assignment for the benefit of creditors ? For a long period in this state there "was no stat- ute limiting or regulating the common law rights of a debtor to convey his property to an assignee for the payment of his debts. It is well known that in many cases where debtors resorted to this mode of shielding their property from judicial process, they made choice of an insolvent friend or relation for assignee, who -would administer the trust in the interest of the debtor; and not having to file any invento'ry a;nd appraisment of the property assigned, or give bond for the faithful execu- tion of the trust, the resuit was that the property was appro- priated by the assignee for his own and the debtor's use, and it was rare that creditors received anything from the trust. Under that system it would have been more appropriate to designate the transaction as an assignment for the benefit of the debtor and his assignee, and to defraud creditors, thanas an assignment for the benefit of creditors. �Of course, it was open to creditors to invoke the aid of a court of equity to remove such an assignee and appoint some suitable person to execute the trust, but it often happened that before creditors, who usually resided at a distance, could be sufficiently advised, and concert measures for their pro- tection through the court of chancery, that the assignee had placed the property and its proceeds beyond their reach. And where that was not the case, and the creditors succeeded in getting rid of the debtor's assignee and having a receiver ��� �