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528 18 ELIZ. CAP. 5, FRAUDULENT CONVEYANCES. supra, the deed conveyed all the debtor's stock in trade, merchandize, goods, chattels, &c., and was recorded only amongst the chattel records, and it was held void as not including all the debtor's property. Extrinsic evidence, said the Court, cannot supply the omission. No particular words are neces- sary but such only as will convey all the debtor's property. They must comprehend all, and negative the presumption of there being any other property of the debtor. In Bridges v. Hindes supra., the deed convoyed all the debtor's goods, wares, chattels, effects, rights and credits, and all debts, &c., and all the estate and interest of the debtor in said property and premises, and it was held void, for it enumerated only chattels and person- alty and referred the estate of the grantor to the previously enumerated property. But in Farquharson v. Eichelberger, 15 Md. 63, the conveyance 395 in the premises was* of all the debtor's chattels and estate; the habendum omitted to limit the "estate," but the Court said that the prem- ises controlled the habendum and conveyed the whole—and that though words of inheritance may be wanting in such a deed conveying property in trust, the intention being manifest, a fee simple passes. Reservation of surplus.—In the next place, the debtor must not reserve the surplus to himself after the releasing creditors are satisfied, nor exclude non-assenting creditors from it, Green v. Trieber supra.46 Such an assign- ment in terms gives the debtor a preference over the creditors who do not assent to the deed, and it is fraudulent as to them, on account of the hindrance and delay they would meet in the pursuit of their remedy against this surplus. The conclusion of law cannot in such a case be rebutted by proof of good faith on the part of the assenting creditors, as that their claims exceed the value of the property, or that the assignment was made at their instance and to a trustee of their selection. The very reservation of the surplus to the grantor is indicative of the opinion of the parties that it is or may become valuable, and the inference of fraud is resistlessly furnished by the declared purpose of the trust to prefer the debtor over a portion of his creditors. But the Court will not look outside of the deed to see whether or not there will be a surplus. The deed must dedicate the whole of the debtor's property to his creditors. If a few of the creditors only should assent to it and the rest stand out, the surplus would go back to the debtor as a resulting trust, Malcolm v. Hodges, 8 Md. 418, and the deed be equally as objectionable as if the surplus had been expressly reserved to the debtor, see Bridges v. Hindes supra. The devotion of the rents and profits only of the estate to the payment of the grantor's debts is also a badge of fraud, see Banks v. Williams supra. In Green v. Trieber supra, the trusts were to permit the grantor to remain in possession, and take the rents and profits without rent until sale, 2° to sell, 3° to pay the ** The same is true of a deed which makes no disposition of the surplus, as such surplus results by implication to the grantor. Whedbee v. Stewart, 40 Md. 414. Cf. Farrow v. Hays, 51 Md. 498; Mayfield v. Kilgour, 31 Md. 240. But a reservation to the grantor of what may by law be exempt from execution is good. Muhr v. Pinover, 67 Md. 480. And a reservation of the surplus is likewise good where the deed conveys only specified property to pay specified debts. Stockbridge v. Franklin Bank, 86 Md. 189. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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