Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-01-25
DECISIONS OF THE, SUPREME ocuRr.
n OFFICIAL

Term, 1880. 49, y sSA..DeA
hdsVo0k ana we vs. Deery and Others Gordon w. Deer,
IL II and others.
l The eomplainants in both bills oro co5i.o. ,e ~
| Deerys who failed in business and have become in
selEent bas were possessed OF LARGE r,ronarty sb
ject TO these debts. But not having eno1rh IN nav
all, and having given various trust deeds and hens
upon it, this contest has arisen for priority of s,t;s
| faction between Gordon under ASSIGNMENT of Stb
April. 1856, registered 9Th November 1856 and tba
benefciares in deed Of trust to Cox made and re-
! gistered 1st October, 1856. The real estate las
been sold for large amount, near $4,000, under
interocuts=y decree il is not sufficient 10 satisfy
/ the creditors in both deeds. EaH HIis
Two objections are taken to Gordonis claims To
priority. lst That his deed of assignment invalid
for want of sufficient description of the property
assigned. The language used is, their Joint or
joint and several undivided interests in the real
estate of VIM. Deery, their father late of Sullivan
county, deceased, wherever the real estate may be
situated" &c
To have and to hold the said undivided interest,
seyerally or in cOmmen belonging to said Deery
Brothers, according to law, as heirs and devisees
of the said.Wliam Deery, their father, to the said
Gordon, heirs and personal representatives for
ever" '-
This description is very general, but according
the authorities it is not so vague and uncertain as to
render assignment void. 4 Cruises Dig title 80,
ch 20 sec. 81. 1t is laid down that lands will pass
in a deed by the words "all the estate which de
scended to the grantOr from ]. j." He cites Shep.
Teach. 250 q ta--ft-- -- q.
This is very analogous and closely in point, and
the authority is high. The case of Jackson vs.. De-
laney. IL John. Rep - John, 554, is also in point
and is that of Brashear VS.. West, 10 Curtes GA
from Z Peters COS, SEQ also j Aeig's Dig 764; 3
Hayw. 24S Burrell on Assign. 262-S-4-5 is an adj
ditional authority on this point. -, ~
Its easy to ascertain from the description in this
deed what is the property assigned. 1t il all their
the real estate Of their father who died
IN Sullivan county, wherever it may be situated
The titles of their father must be in writing, and
to these, in effect reference is mqdelor the quantity
and description Of the property But if this were
not So and the objection available the defect would
be remediedlby the completing deed TO COx.in which
all the said real estate is particularly described and
1t is declared in that deed TO be the assigned
to Gordon, whose rights are reserved and secured
according to the deed of April 18th, 1856.
2. The second objection to the deed of Gordon is
thai it provides for and secures future advance
merits of h. 0lties 70 be incurred. There is no ad
Judeation of this Court upon that question, and it
IS an open one SO far as our cases so. As to the
two cases referred to in our reports, the question
instead of being decided is expressly left open In
Peacock vs. Pompkins, Meigs, K. 1928, the court az
ter stating that it had been argued that it did not
yitiate an assignment, that it provided for future
advances to the maker, say, without deeming it
necessary t. assent to, repudiate this proposition
1t Is sufficient to remark that such is not the stpu-
lation in tbs deed upon the record" In the other
case of NeueP VS.. Pardec,3 Sneed 1913, it is said,
himself as 20 future debts and dealings BY paroI.
We need not now consider the questionas tOhow
far prospective advances of goods money may
be secured by mortgage, because to raise that CUES
ton, the case must be expressly set fourth in the
deed, for it IS well settled, that i subsequent debt
under parol agreement at the time or by distinct
contract, cannot be looked 10 or embraced by q
mortgage or assignment which is silent in relation
thereto. And this last is the case before us'' fl
50 in both cases it will be seen that the question
o1lu 70 T,,Ib
by counsel and to state that it did not arise in the
case before the court and therefore 1t mProner
and unnecessary to decide IL All that is decided in
either case, and that is done in both Is. that an
assignment wall not be held to secure future al
Vances or subsequent debts, where there Is 20
stipulation to that effect in the deed-thatit cannot
be done by parol agreement OF understanding
But now the question is directly presented wheth-
er this can be done by express stipulation in the
deed, and We may properly decide it. The purpose
and scope of this assignment is stated in the begin
ming of the instrument in these words:
Whereas, said neery Brothers are carry ing on at
Alisonia,3 he spinning Of cotton yarns, and the
manufacture of cotton goods which they are in the
habit of cOnsigning for sale to said Gordon, and of
drawing him upon the faith of said consgnments,
for the purpose Of raising money, by anticipating
the sale Of said yarns aud goods by means Of said
GOIdOns cepting said drafts, andsaid acceptatiOns
often exceed the amount or value of the consign-
merits; and the said Deery Brothers desire to enable
Gordon to iHdeannifY himself against the contingent
cy of such excess of drafts not being provided for
by them, they in consideration of the premises aud
the sum of one dollar &c, convey &c. A full and
ample power to sell ali or any part OF the land is
conferred when necessary, for the protection or
indemnifcation of Gordon. Fta
There be no doubt at all, upon the authorities
OF the validity Of SUCH assignments where fairly and
bona ide made.
The power to give such securities seems to be
almost indispensable, in trading commercial coun-
Try where credit and confidence must be maintained
for the of trade Manufacturers and dealers
in the produce of the country obliged to obtain
aceeptances for large amounts, and in order to do
they must in mode secure against loss TO |
the capitalists from whom they obtain advances, or
who enable them to raise money upon the credit OF
their acceptances or endorsements. /
In Conrad vs.. The Atlantic Insurance Co., Pc
tiers, AS the principle is clearly stated, that mort
cages may well be given to secure future ad- |
vances and contingentd debts those which already
exist and are certain and due, The Only question |
that properly arises in such cases is the bona der
of the transaction" This position is well sustained |
by numerous authorities cited, 2 Powell on Mort |
533, Cranch 63, Cranch 81 Cowan, ZIG, 293 /
Pickering 3s9 "a Pickering 274. In Bur. on As |
sign as to 80 the same doctrine is maintained and
cases cited. ....... ........ |
1t is clear then that the assignment of Gordon is
not obnoxious to objection this ground. The on
" question then is to what extent did he make ad
incur liabilities for the Deery Brothers, IN
der this and before the LIST of October, lS56-the
date of the deed to Cox. He claims large amount
between thirty and forty thousand dollars. The
Chancellor only gave him preference for $4,000,
because thai is the amount in the Cox deed This
was upon the ground that he had to rely upon the
reservation in his favor in that deed and not upon
his own Of the preceding April But this is mis-
taken assumption. Gordon has right to claim I'M
der his own Assignment for all the advances and IL
abilities incurred for the Deerys previous to the
intervening right of the benefciaries in the other
assignment on the lst Of October. He cannot be
bound or limited by the recitations provisions eff
the latter deed to which he was not party. The
only purpose for which they can be looked to, or
become important, is TO fix notice of the pre-exist-
ing deed and thereby bind the benefciaries by it,
as though it had been registered. And such must
be us effect. h
him. it must operate to give priority, without re-
gard to the amount stated in the latter, deed of
Cox
If there had been no reference at all to Gordon's
assignment in that tOCox, there might still be
question whether he would not have the preference I
even without repatriation againstthe subsequent
assignment TO secure pre-existing debts, upon tie
doctrine of the case of Brown vs. Vanlew, Humph.
239. But in this case the reference made TO the
previous assignment is full notice of its contents
and extent. That imposed upon them the duty, or
afforded them the opportunity TO ascertain the full
amount of the charge resting upon the property IN
favor of Gordon, by virtue of the assignment to
which preference was made, if they neglected to do
so it their own folly and they much bound
and in the some way affected as if they had
We hare no hesitation in holding that Gordon Is
untitled to priority OF satisfaction TO the full extent
Of his Chains for advances made liabilities in
,urred for the Deery Brothers prior to to the LIST of
October, 1856.
This amount will be ascertained by reference to
nc Master aud first paid out of the fund resulting
rom the sale Of the property. slf '.if 1'. - -
No question is made to the rights Of Judge Me-
Kinney to his claim deCreed below. nor do we
that the right of AeGaYock and wife to
satisfaction as ordered is controversial. II
A decree will be entered here with the mo1idca
ions indicated in this opinion, and the cause re
NAMED. rs.I5 u. r.-.- + - CARUTiERs
A true copy, Feste: CIV. NELSON, Clerk
TENN ESsEE LEGISLATURE. !
1---g8ss % gytrey AsFTa't 80 r.e- % .-#e .a