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BANK OF WESTMINSTER VS. WHYTE. 518 since the decision of the case of Alexander vs. Ghiselin et al,, 5 Gill, 188, .that if the transfer of this property is to be regarded as a mortgage or a pledge for the security of a debt, that it would be the right and the duty of the insolvent trustee to sell it, and pay off the liens and incumbrances thereon, the opinion of the Court of Appeals in that case being explicit to that effect. But it is urged that the transfer here, though made to secure a debt, is in the nature of a trust, and that the insolvent trustee has no authority to interfere with the trustee selected by the convention of the parties, whose right it is to proceed in the discharge of his duty, undisturbed by any such interference. It appears to me, however, that assuming this transaction to be such as the counsel for the Bank has charac- terized it, that is, that the property in question, though trans- ferred to Mr. Fisher absolutely, was nevertheless affected with, and to be regarded as subject to a trust, for the payment of the money due from Suter to the Bank, and that parol evi- dence is admissible for the purpose of showing the. trust, still it seems clearly to come within the Scope of the principles settled by the Appellate Court, in the case referred to. Look- ing to the design of the insolvent laws, as expounded in that case, which was to secure a prompt, single, and harmonious administration of the estate . of the insolvent, which could only be effected by bringing all the parties interested before one and the same tribunal, it would seem to be essential that no one should be permitted to participate with the insolvent trustee, in the execution of the trust by which, as observed by the Court in that case, " adverse interests might be created, delays endangered, if not ensured, and probably different, and possibly conflicting tribunals consulted." Considering that this question is in effect settled by the case in which these remarks were made, I shall pass an order dis- solving the injunction issued upon the bill of the Bank of Westminster, and continuing that which issued upon the bill of the insolvent trustee. JOHN NELSON, for the Bank. DAVID STEWART, for the Trustee in Insolvency. |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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