The Roanoke times. [volume] (Roanoke, Va.) 1890-1895, 1893-04-02


show of reason and earnestness, and as
L verify believe with the most perfect
candor, is to the effect that the assign.
nent was absolute; that it WAS coupled
with secret trust which itself consti.
tutes tho transactions fraudulent per
sc, ana the court must so pronounce 1t,
whatever may have been the intent of
the parties. There is no sort of CUES.
ton but what our own courts have held
certain transfers OF property absolutely
void as to creditors, although they
have not gone near so far as the
courts of other States. See % W. Va.
This was done in Burton & Co. VS..
Mills 7S Va, where y grantor made
deed to trustee for the use and benefit
OF himself and family; also in Q isrles
VS.. Kerr ct ais. IA Graft, where the
owner divided his property and required
of his creditors that they accept part
and release the residue; also in Perry
IL Co. vs.. Shenandoah National Bank 81
Graft where the owner conveyed
stock OF goods and retained possession.
SEQ also s. Va. BIC for substantially
tho Same doctrine.
These cases were the conveyance OF
real estate or goods and chattels, in
which the grantor either retained
control over, or was in some way tho
beneficiary and in manner 'incon-
sistent with tho avowed purpose OF the
trust
There were several cases cited out
side of Virginia, principally Pennsyl-
vania cases, notable Lukans VS.. Arid,
70 U. S. and Passmore ct. ais va.
Eldridgo and others, ETC., ~ S and II
(Penn) 19S, which hold that whore
there is an absolute conveyance and the
debtor STIMULATES verbally for some
benefit to himself such 4 transaction is
fraudulantper Sc.
None OF these cases, however, in
my opinion can fairly bo construed to
embrace an absolute assignment OF
chose in action by way OF security
where no recordation is nee sssary and
no crcditors necessarily misled. That tho
assignment in question was as a secur-
ity there can be no doubt. En- rleby,
tho president of tho creditor Company,
Miller its attorney, Patterson tho dc btor
and Mcconnell his indorser, all SLY that
it was SO given. On this point they are
ntradicted, but TO return, certain it
ID, our Virginia courts have never
gone to the extent indicated and IL the
pennsylvania cases admit of such con-
struclion which, in my Judgment. they
do not, then IL scems to me they are
wrong in principle and with the utmost
Difference must refuse to BIO governed
by them.
ut might be we'll to remark in passing
that in 1881 the Pennsylvania legisla-
ture enacted that deed absolute on it's
face cannot be shown to be q mortgage,
except bya written defeasance signed,
sealed, acknowledged and recorded.
This is simply men tioned as indicative
OF the fact that assignments of tho
character in question are looked upon
with greater distavor in Pennsylvania
than in our own State.
Upon the whole then it seems to me
that tho view adopted by Mr.. Wait in
his work on fraudulent conveyances
(Section 23S) Is tho correct one. 1t Ger.
tAinly appeals mort strongly to nv
sense of right, he says, after giving tho
view as cOntended for, by the complain
ants, that probably the weight OF the
better authority and the sounder reason
ing, is TO the effect that an absolute
conveyance by way of security is q
badge OF fraud which may BIO removed
by evidences of an honest intent TO
Same effect SEQ Reach on modern equity
jurisprudence, Sec 4O5 and cases cited.
Applying this doc trine to the present
case the making of an absolute assign.
ment of chose in action by Patterson
by way of security, AMI it's acceptance
by the Fidelity Loan and Trust Co. is
suspicious tranSac ton and throws upon
tho Defendants tho onus of showing the
bona tides of the parties and this bur
den they have assumed and disposed
OF by tho clearest evidence.
"To hold this transac ton fraudulent
per sc would be to hold that wherever
there was an absolute assignment of 9
note or other chose in action as Sc
curity for debt to n bank or indi-
vidual that such assignment wss void
as to other creditors of tho failing
debtor. 1t is easy to sec that such a
course would revolutionize banking
contracts.
cit is not contendod that there was
actual fraud in this transaction. Coun.
sci for defendants insist that tho
debts claimed are not due and payable,
but have not found it NE essary to the
decision of the case to pass on this
question. Holding as l do the fore.
going views hurriedly and Inc perfectly
expressed, the bills of com plainants
should be dismissed with costs and
decree may be drawn accordingly"
This order was suspended for sixty
days in order to give the plaintiffs timo
to carry the suits to higher court
which will be done imm ediately.
Inc Claims Oh the plalntllfs amount to
very much less than the amount trans
ferred, and the court will decide within
the next thirty days what portion of
this shall BIO released.
ABoid Safe Cracking.
LEXINGTON, Va, April 1.-The Miller
safe in the Union passenger station OF
the baltimore and Ohio and Chesapeake
and Ohio railroad was cracked last night
by unskilled workmen and robbed of
nearly 500. The safe was rolled out of