Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1866-03-10

houses in the city, together with large
amount of other important information
in our Pubic DIRECTORY column on
the first page Of the Pubic LEDGER. I
IMPORTANT DECISIONS OF THE SUPREME
CoURT OF TENNESSEE The following is
the opinion of the Court, in the case OF
Leon Berry & Co.. Us. Green Il. Marley,
et al, from Paris Chancery Court
By the Couri.--The decree must be ai-
frmed, not upon the ground that the
deed of trust is fraudulent, for we do not
see that, in law, it necessarily is so, or
that any actual fraud was intended; and,
certainly, as to the creditors sought TO
be secured in the deed, it would be diff
cult to affix fraud upon them; but the
difficulty in the way of Fl. Il R. B, Whit
man & Co Collins, b kellogg d
Co., Manning, Drake & Co, Bernard
Adams & Co. and j. NJ. Ashton--the
creditors who bring this writ of errors,
that there is nothing to show they &C.
cepted the trust, or in any manner as
sented to its provisions, until the COM
plainants, who are judgment creditors
of the g.anter of the deed, had filed their
bill and attacked the property sought to
be conveyed in the deed. But there is
much to the contrary. If a deed Of trust
be made without the privity or knowl-
edge of creditors, it is revocable by the
granter until they accept, and the deed
operates merely as power to
the trustee, who, until then, holds for the
granter; and, If, in the meantime, be-
fore the creditors have received informa-
ton of and affirmed the trust, a judg-
ment or attaching creditor of the granter
seize or attach the property, his lien and
equity become superior to that of the
creditors who subsequently accept and
agree to take, under the trust This is
so, though the trust be accepted by trus-
tee, or by one or more of the creditors,
as TO those who do not accept Ordinarily
the acceptance of all the creditors will
be presumed, if nothing to the contrary
appear, but in a contest between attach
ing or Judgment creditors, and the cred
itors secured in the deed, no such pre-
sumption arises, and some positive, defin-
lite act ofacceptance must be shown,--l0,
Tory, l5s; c, Horne, ,3l3; 10, Horne, 81,
377; ., Sneed 16i, l72, and the late
case of Mills & Co. Us. Haines and
others.-s, Head, 1872, ,336,
The deed here was made lst February,
1858, and compliments filed their bill
and attached the property in November
of that year, the granter and trustees only
being parties, and in April or May, 1860
the creditors in the deed are made par
ties. 1t is charged in the bill, and ad-
mitted in the answers OF. all-including
the creditors who sued out this writ Of
error-that the deed was made without
the knowledge or privity of the creditors
secured in the deed, and it is manifest
this is so, save as to Miller and
Of the trustees, and q small creditor in
the deed but who does not appeal from
the decree, In the bill it is also charged
that the creditors in the deed, (most Of
whom, including those who seek rever
sal of the decree, seem to be non-resi
dents) never did accept the trusts, and
as to a large number of them there is no
answer, and the bill is taken for con-
fessed; and as to others it appears they
repudated the deed, and as to the cred
itors who now seek a reversal of the de-
cree, they in June or July, 1860, filed an
answer, sworn to by their attorney only, in
which after admitting that the deed was
made after without their knowledge or
consent, they say that when informed
Of the assignment they signi6ed their
acceptance to the attorney having their
business in charge, but at what time,
aud whether before or after complainant
had attached the property, they do not
say, nor is there any proof of this allega-
ton in the answer so that in the truth we
have no evidence Of their acceptance at
any time anterior to fling their answer,
and of cosrse under the rules above stated,
their rights are Subordinate to complain
ants liens Bat We think (,he deed not