benefit of the creditors, to collect outstanding debts, and to sell the farming stock and all other effects of the defendant, and out of the monies arising from the sale of any part thereof as should be mortgaged, to pay and satisfy the mortgagees, and to stand possessed of the residue of the monies, upon trust to pay the costs of the trust-deeds, then to pay Poyntz the rent due to him, the duties due to the crown, the rent which then was or thereafter should become due for any of the premises assigned, the interest which then was or thereafter should become due upon the mortgages, then to pay the debt due to Stoveld and Upperton upon their bond and judgment, with interest; then to pay in full all the creditors whose debts did not amount to 10%.; then, at the expiration of nine months, to pay all the other creditors named in the schedule the amount of 5s. in the pound on their respective debts, without preference or priority; and after the expiration of eighteen months, the period of management of the brewing and malting business, or as soon as conveniently might be, to convert all the remaining trust-estate, and get in all the remaining debts, to pay all debts and expences of the trust, and all incumbrances, and to stand possessed of the residue upon trust, to apply the same towards the full discharge of so much of the debts of the creditors named in the schedule as should be then remaining unpaid, rateably and without any preference; and, lastly, to pay the surplus (if any) of the trust estate to the defendant. There then followed a covenant, by the creditors who executed the deed, that if the indenture did not become void by virtue of the proviso therein contained, the respective creditors would, at any time after the determination of the eighteen months, release to the defendants 3L 4 1822. WELLS against GREENHILL. 1822. WELLS against GREENHILL. defendants all actions, claims, and demands whatsoever on his estate for or on account of any debts due or owing by the defendant, or for any other matter or thing whatsoever, and that they would not in the mean time commence any action against him. The indenture then contained a proviso, that in case any creditor, whose debt should amount to 100%. or upwards, or any two creditors whose debts should amount to 150% or upwards, should not execute the indenture within three calendar months, that the deed should be void. The schedule at the foot of the deed contained a list of the persons who were creditors on the 13th October, 1819, and the amount of their respective debts, and the name of the plaintiff was inserted therein for 2261. The indentures of lease and release, and of assignment, were duly executed by the defendant and the trustees; and the assignment was also executed by the plaintiff, Wells, and all the other creditors named in the schedule, within three calendar months; except Stoveld and Upperton, creditors for 400l. upon the bond and judgment; J. H. and J. T., creditors for rent; and G. M., a creditor for 201. for interest of mortgage money. By the trusts of the deed, these several parties were entitled to be paid in full. The trustees took possession of the estate of the defendant under the deed, and sold part, and have received the rents and profits, and collected the debts due to the defendant, and have applied the money arising from the sale of the mortgaged estates, in discharge of the principal and interest of the mortgages; and they also, during 18 months, carried on the brewing and· malting business, and paid the excise duties, rent, taxes,' and other outgoings, and the interest of the mortgages, the 4001. due to Stoveld and Upperton, and the debts of 1 such such of the creditors as did not amount to 10%., but in consequence of a deficiency of the assets, they had not been able to pay the other creditors any dividend on account of their debt. It was contended at the trial on the part of the plaintiff, that the deed was void because Stoveld and Upperton had not executed it. The Lord Chief Justice, however, was of opinion, that that was not necessary, and the plaintiff was nonsuited, but leave was reserved to move to enter a verdict for the plaintiff, if the Court should be of opinion that the deed was void in consequence of its not having been executed by Stoveld and Upperton. A rule nisi having been obtained accordingly. Marryat and Courthope now shewed cause. The proviso does not extend to those creditors, whose debts by the terms of the deed were to be paid in full. If it did, it would follow that the deed should have been exexecuted by somebody on the part of the crown and by the mortgagees. The object of the deed was, to enable the trustees to raise funds by carrying on the trade for 18-months, and thereby to pay the debts in whole or in part of those creditors, who, at the time of executing the deed had no means of compelling instant payment. The debt of the crown at that time might have been levied by an extent, the rent might have been levied by distress, and the debt of the judgment creditor by instant execution. By the provisions of the deed, therefore, those creditors were to be paid in the first instance, and they might have been paid within three months after the date of the deed, and if Stoveld and Upperton had been paid their debt within three months, it certainly could not have been necessary for them to become parties 1822. WELLS against GREENHILL. to 1822. WELLS against GREENHILL. to a deed, from which they could derive no benefit whatever. viso Gurney and Curwood, contrà. The words of the pro are, "that if creditor whose debt amounts to any 100%., or any two creditors whose debts amount to 150%. should not execute the deed within three calendar months, it should be void." Now Stoveld and Upperton were creditors for 4007., and did not execute the deed within the time required, they therefore, come within the very words of the proviso, and consequently the deed is void. [Bayley J. A mortgagee whose debt exceeds 2007. is a creditor within the words of the proviso, but surely it was not necessary for him to execute the deed? A mortgagee could derive no benefit from the deed, because by the terms of the mortgage deed, there probably was reserved to him a power of sale upon non-payment of the principal and interest. He therefore had it in his power to compel payment, but Stoveld and Upperton, who were judgment-creditors, might derive some advantage from the trade being carried on for 18 months, for during that time funds might be acquired sufficient to satisfy their debt, and possibly at the time of executing the deed, there might not have been sufficient effects of the defendant liable to be taken in execution by Stoveld and Upperton. ABBOTT C.J. The question in this case turns on the effect of the proviso, by which the deed was to be void in case any creditor whose debt amounted to 100%, or upwards, or any two creditors whose debts should amount to 150l. or upwards, should not execute it within three months, Now, the words " any creditor," are are certainly large enough to comprize all those to whom the defendant owed money, but we are to look at the whole deed to learn whether those words are used in a general or limited sense. If they are used in the former sense, they would clearly include a mortgagee. But it is conceded in argument that they do not apply to him. Then if so, they are clearly used in a limited sense, and the question is how far they are limited. Now, that can only be ascertained by looking at the whole deed, which is made between the defendant of the first part, certain trustees of the second part, and certain creditors therein named of the third part, and it recites that the defendant was indebted to Poyntz 1531. for rent, to the crown for 4137. for duties, to Stoveld and Upperton 400l. upon bond and judgment, and to the creditors named of the third part, in the sums of money set opposite their names in the schedule. Now, it is observable that Stoveld and Upperton are here mentioned and distinguished from the creditors of the third part. The deed then conveys the property of the defendant to trustees upon trust, to pay the rent due to Poyntz, the duties due to the crown, and the judgment-debt to Stoveld and Upperton, and then to pay all the creditors whose debts are under 107. in full, and after that 5s. in the pound to all other the creditors mentioned in the schedule. The deed also contains a covenant, that the creditors who executed the indenture would release their claims on the defendant. Now, if Stoveld and Upperton had executed the deed, they would have been parties to this latter covenant, and the effect of that would be, to make them covenant to release that debt, which by the provisions of the deed had been previously agreed to be paid in full. But this would be an inconsistent pro vision, 1822. WELLS against GREENHILL. |