
    *Philip S. Justice et al. v. William J. Uhl et al.
    The circumstance that mortgages are successively made upon the same property, or that several mortgages are made at the same time, upon the same property, to different persons, by an insolvent debtor, to secure, severally, debts due to such persons, does not constitute any one or all of the mortgagees taking possession of the property, trustees under the act regulating assignments in trust to preferred creditors.
    Where facts arc proved to show that an assignment, though not in form, was, in intent and by agreement, a trust within the statute, the conduct of the party taking the title and possession subsequent to the time of the inception of the title and of the taking possession, while it may authorize an inference that the parties agreed that what was done should be done, does not, ordinarily, amount to more than evidence of an intent and agreement. And where, in such a case, the facts are found by the court, but there is no finding of an intent or agreement to constitute a trust, this court can not, from facts found as to the subsequent conduct of the parties, in the disposition of the property, supply such finding of intent or agreement.
    Error to the district court of Erie county.
    
      The plaintiffs in error filed a petition in the court of common pleas of Erie county to compel Converse, Giddings & Bigelow to account for a fund in their hands as trustees of Uhl & Darling, under an alleged assignment in trust to prefer creditors. The trust was denied.
    Upon an appeal to the district court, the case was submitted to the court, and a judgment entered, finding a trust as to the amount of certain notes and accounts, amounting to about $900, and ordering its distribution among the creditors of Uhl & Darling, but as to the principal part of the fund in controversy, the court found that there was no trust.
    Eor the purpose of reviewing the action of the court on this part of the case, a bill of exceptions was tendered and signed. This bill of exceptions does not purport to set out the evidence, but states that the following facts were found to exist: 1. That Uhl & Darling were indebted to the plaintiffs and others. 2. That on the 19th *of January, 1854, Jemison & Uhl, being engaged as partners in the hardware business, at Sandusky city, an arrangement was made that Darling should buy out Jemison, and take his place. Uhl & Darling agreed to pay the partnership debts, and to indemnify Jemison, executed a mortgage on the stock of goods. This mortgage was not filed until the 6th of May, 1854. After this arrangement, Uhl & Darling continued the business, buying and selling goods, and made extensive purchases during April, May, and June, and before the 27th June, 1854. 3. On that day a mortgage was given to Coleman, Hilman & Co., on their stock of goods, and ■on the 29th of June, 1854, another to Logan, Tail & Co. The court found that it was the implied understanding between the mortgagors and mortgagees that Uhl & Darling should continue their business so long as they might be permitted to remain in possession of the stock of goods. “ All things remained in this situation up to the 12th of July, 1854, the said Uhl & Darling carrying on business and selling goods the same as if no mortgages had been given. But ■that on the taking possession of the mortgaged property as hereinafter named, by Converse, Giddings & Bigelow, claiming as agents and attorneys of the mortgagees, said mortgages were not only good and valid against the mortgagors, but as agai nst the creditors of Uhl & Darling.” 4. “ The court further find that prior to the 12th of July, 1854, said Converse, Giddings & Bigelow, as attorneys, had received for collection the three several mortgages before mentioned, and the claims therein named, and also a claim in favor of the Russell & Erwin Manufacturing Company, and one in favor of Stanton, Sheldon & Co. On the morning of this day, Converse, Giddings & Bigelow called upon Uhl & Darling to give up the peaceable possession of all the goods mortgaged to them, as the agents and attorneys of the mortgagors. Darling at first refused to comply; he would prefer to make an assignmónt for the benefit of all their creditors; but finally said that if *Banks, from whom he had individually borrowed money to put into the concern, could be paid or secured, he did not care what became of the other property. Converse, Giddings & Bigelow told him he should not make a general assignment, for if they did not comply and give them possession they would replevy them within half an hour. They refused to have anything to do with the claim of Banks, but told Darling if, after they got possession of the goods, they found the book of accounts and notes sufficient to justify it, they would take an assignment of them on their own account, and assume to pay Banks his claim, and nothing more, against Darling, amounting to about $900. They then asked Darling to give mortgages on their goods for the claims in their hands, one in favor of Russell & & Erwin Manufacturing Co., and one in favor of Stanton, Sheldon & Co. And thereupon said Uhl & Darling gave the two several mortgages in favor of Stanton, Sheldon & Co. and the Russell & Erwin Manufacturing Co.” Copies of these two mortgages as attached to the answer of the defendants are referred to. These-mortgages convey the entire stock of goods then in the store of Uhl & Darling, and were at the time drawn up by Converse, Giddings & Bigelow, and executed at their request by said Uhl & Darling. And immediately thereafter said Uhl & Darling gave up possession of said stock of goods to Converse, Giddings & Bigelow, who took possession thereof as the agents and attorneys of all of said mortgagees, including the last two mortgages given, and only as such agents and attorneys, as they claimed. That so soon as Giddings, who was one of the firm of Converse, Giddings & Bigelow, had proclaimed that he had taken formal possession of the goods, he turned and looked over the books of account and notes, and finding them fully sufficient, as he supposed, for that purpose, said they woidd take them according to the proposition previously made, and pay off the claim of Banks. And, thereupon, an absolute assignment of said books and notes was made *by Uhl & Darling, to Converse, Giddings & Bigelow. No inventory-of the goods was made, but Converse, Giddings & Bigelow employed Ehl & Darling to act as their clerks, but .the business-was ostensibly conducted as before, save that Converse, Giddings & Bigelow kept a clerk there, or one of them was thereto receive the money. The business was thus continued till the - 18th of September, 1854, and the net proceeds of the goods sold during that period, after paying all expenses, amounted to between $700 and $800. At the time possession of the goods was taken as-aforesaid, no attempt was made to ascertain what portion of the goods that were on hand at the time the Jemison mortgage was given, still remained, and it was difficult to designate them to any extent, from the goods on hand subsequently purchased, but they were more than sufficient to pay off the Jemison mortgage. W. F. Giddings directed, when ho took possession for the mortgagees- and employed Uhl & Darling to act as clerks there, that when they made out aecounts'of sales made, they should be in the name of Uhl & Darling, agents, and any sales On credit should be kept separate from the former accounts; but that he ascertained afterward that these instructions had been violated without his knowledge, and when these facts became known to him, he disapproved of it. 7. The court also found, that on the ,18th of September, 1854, with the consent and approbation of said Uhl & Darling, the • said Converse, Giddings & Bigelow, as agents of the said mortgagees, sold to John H. Williams the goods remaining on hand foi" tbe sum of $8,603.82, supposing that this sum, in addition to what, had been before received, would be just sufficient to satisfy all of said claims or mortgages, represented by said Converse, Giddings- & Bigelow, and they took said Williams’ notes therefor to themselves, as set forth in their answer herein. They also, on the same day, sold and transferred to said Williams the books of accounts- and notes, obtained as aforesaid of Uhl & Darling, upon an agreement that Wiliams ^should step into their shoes, and assume and pay the claim to said Banks in consideration therefor. But tbe court found that the sale to Williams of the accounts, etc., was-a separate transaction from the sale of the goods to Williams, but made about the same time. 8. At the time the sale to Williams' was completed and notes received, Bigelow, on behalf of himself and partners, told Uhl & Darling that they would cancel the mortgages and claims in their hands for collection against them, and* ■they could have them at any time they would call fox- them, but he wished to retain them long .enough to make the entries on their books. He did so retain them. They were never called for by Uhl & Darling, and are still remaining in Converse, G-iddings & Bigelow’s possession as cancelled paper; and it was understood at that time that those claims secured by the said mortgages were paid and satisfied by the sale of the mortgaged property to Williams. 9. At the time of the com.mencem.exxt of this suit all of said notes given by said Williams axxd received for the sale of said goods to him, were in the possessioxx of said Converse, Giddings & Bigelow, and those that are not due, are still held by them, and for the benefit of and belong to the mortgagees, or parties for whose claims they were taken in satisfaction as afox’esaid. 10. The court fux-ther fouxxd that said books of accounts and notes, assigned by Uhl & Daxding to Converse, Giddings & Bigelow, were in point -of fact worth but $900, and xxo more than that amount could be realized out of them. And the court thereupon held, that neither -said plaintiff nor any of the creditors of said Uhl & Darling except the said mox'tgagees, whose claims against Uhl & Darling had been paid axxd cancelled by the sale aforesaid to said Williams, had any right in law or equity to said goods, or any of the pro-ceeds ax’ising there/rom; axxd that neither said defendants, Converse, Giddings & Bigelow, nor the mortgagees they represented, were in any way boxxxxd to accouxxt to the petitioxxers or other creditors of Uhl & Darling *for the same, and that'the said Coxxverse, Giddings & Bigelow were xiot txuxstees, but only agents -and attorxxoys for the parties for whom they acted, and that no title, legal or equitable, of the said mortgaged property, ever vested ixx Coxxverse, Giddings & Bigelow.
    To this fixiding of the court, an exception was taken, and a bill of exceptions, embodying the fixxdings and the conclusions of the court, allowed and signed. The bill of exceptions does not purport to set oxxt all the evidence, nor was there a motion for a new trial.
    
      E. B. Sadler and S. Minor, for plaintiffs ixx error.
    
      J. G-. Bigelow and P. W Wilcox, for defendants in error.
   Gholson, J.

The form. in which the questions decided by the 'district court are presented by the record, only allows a review of •the conclusions of law. In some parts of the bill of exceptions, there are statements rather of evidence than facts, but as to the effect of such statements as evidence, it is not proper for this court to inquire. The only question is, whether all the statements, being regarded as statements of facts, show that the legal conclusions to which the court arrived, were erroneous?

There are two aspects in which the case maybe regarded. 1. As to the form of the assignment. Was it such as necessarily to constitute the transaction a trust within the statute prescribing the-effect of an assignment to trustees in contemplation of insolvency, and to prefer creditors ? 2. As to the facts found by the court which accompanied the formal assignment. Do they show in connection with, or independent of, the form adopted, that it was the intent and agreement of the parties to create such a trust as comes within the view of that statute ?

As. to form, it has been repeatedly held in this court, and must be regarded as settled doctrine, “that the act does not extend to, or in any way affect, conveyances or ^mortgages made by a failing debtor to his creditor, for the purpose of paying or securing-his debts.” Dickson v. Rawson, 5 Ohio St. 218, 222. “It may be said that a mortgagee is in some respects a trustee, but this arises-merely as incident to his relation as mortgagee, and is not the kind of trustee designated in the statute.” Atkinson v. Tomlinson, 1 Ohio St. 237, 243. All the assignments in this case purporting to convey property, are in the form of mortgages. They contain a conveyance of title and a defeasance; they appear on their face to be securities for the payment of money. Flagg v. Mason, 2 Sum. 486, 533; Lobbau v. Garnett, 9 Dana, 389. These mortgages contain a power of sale, but this, it is clear, does not effect their character as mortgages. “ A power to dispose of the property to satisfy the debt for which it is pledged, is not collateral; but like the right of redemption, inheres in the subject. It is not in addition to the-mortgage, but a part of it, and the mode in which it may be exercised is as proper á subject of agreement, prima facie, as the terms-of the mortgage itself.” Lawrence v. Farmers’ Loan and Trust Co., 3 Kern. 200, 209.

A distinction has been claimed in the circumstance, that in this-case there was not one. but several mortgages. A failing debtor having the right to prefer one creditor by a mortgage upon particular property, it is difficult to see why another creditor might not be preferred by another mortgage upon the same property. 'This would be good against every one except the first mortgagee. Though mortgages are made, successively, upon the same property, they are still regarded in the authorities as mortgages. 2 Hilliard on Mortgages, 347. But a mortgage may be made to several persons to secure their several debts, or several mortgages to different debtors may be executed at one and the same time, so as to place the mortgagees upon an equal footing in point of security, in proportion to their respective demands. And these eases would, as to an interest in the property, stand upon the same principle. *As •to a ease of the former kind, it has been said: “The instrument purports to be a conveyance of the whole property described, to the ■three grantees and their assigns, on one consideration, moving from •them all, but paid in different proportions; a conditional transfer ■ defeasible upon the payment of several sums to each of them. Such .a conveyance vested in them an interest in the goods, and whether this interest is technically a joint interest, or an interest in common, is wholly immaterial. It inures to their common benefit; and ■should the mortgage never be redeemed by the payment of the ■•■debts, but be foreclosed, the mortgagees would hold the • absolute property in the goods, in the proportion of their respective debts.” Hubby v. Hubby, 5 Cush. 516, 518. As to the point of form, therefore, we have no hesitation in coming to the conclusion, that neither -of the mortgages separately, nor all together, constituted an assignment to trustees within the meaning of the statute.

Undoubtedly, the effect and operation of the statute is not to be .•avoided by the form of assignment the parties may choose to adopt. We come, then, to consider the case in its second aspect, and to the inquiry whether the facts found by the court show that there was .an assignment in trust within the meaning of the statute. The requisitions of the statute have been frequently pointed out. There must be an assignment to trustees, in contemplation of insolvency, to prefer creditors. From the facts found, it may be fairly concluded that there was an assignment in contemplation of insolvency to prefer creditors. The hinge of the controversy is, whether this assignment was to trustees or to the parties interested as a security merely for the payment of debts.

The cases arising under the statute may be classed under tw o heads: 1. Where there is an assignment to a third person, or to • one or more creditors, and there is a trust superádded to prefer ••■other persons in the payment of debts due to them. Here it has been said that the test is, ^whether the persons who do not take the title but are to be preferred, may claim in a court of equity an account of the property which was the subject of assignment. Dickson v. Rawson, 5 Ohio St. 218,222. 2. Where there is an assignment to creditors to prefer them, and also a trust superadded for the benefit of tho assignor, or to accomplish some purpose desired by him, other than the preference of the creditors to whom the assignment has been made. We feel bound to consider this ease in both of these views, for we incline to the opinion that, in either way, there may be án assignment in trust within the mischief intended to be reached by the statute. It is true that assignments falling under the second class would generally be invalidated as to any right of preference upon the ground of fraud, but the circumstance that the assigment in trust was fraudulent, certainly does not prevent the operation of the statute. This has been expressly held during the present term. Eloyd v. Smith, 9 Ohio St. 546. And that assignments of this description fall within the statute appears to have been the view of the court in the case of Bagaley v. Waters, 7 Ohio St. 359-368.

Having in view the point already decided, that the form of assignment did not constitute any one or more of the mortgagees trustees for the others, the facts found by the court clearly negative the conclusion that there was an assignment to them, or either of them, in trust for any other creditors of the mortgagors. In the whole transaction there appears to have been no intention to provide for any creditors, except the mortgagees. To bring the case under the first class, it must be shown that there was an assignment to Converse, Giddings & Bigelow in trust for the mortgagees. In other words, that, according to the real intent and agreement of the parties, the title to the property was to be vested in Converse, Giddings & Bigelow in trust for the creditors whose claims they represented. But to sustain this view there should be some finding *by the court that the mortgages were not, in fact, executed as valid and operative instruments. So far from there being any such finding, the facts as found are to the contrary. And even the delivery of possession is shown to have been made to Converse, Giddings & Bigelow, “ as agents and attorneys of all of said mortgagees.” It is true, it is added in the finding, “and only as siich agents and .attorneys, as they claimed.” But the finding in any view forbids the conclusion required by the plaintiffs, that, in reality, the assignment was not to tbe mortgagees, but to Converse, Giddings & Bigelow.

With much more plausibility it may be claimed that the case is one falling under the second class. If what occurred, in fact, immediately after the delivery of the possession of the goods, had been, previously to the delivery, agreed to and intended by the parties, that is, the employment of the assignors as clerks, the carrying1 on the business as before, involving an expenditure of a part of the fund in the wages of persons employed and in the rent of a building, it might be fairly claimed that there was something more than a mortgage security, with the ordinary power of sale. But while these facts are found, and might, from their immediately following ■upon the execution of some of the mortgages, and the taking possession under all, have authorized a court or jury, in the absence of other circumstances, to find the further fact, that at the time possession was delivered, and as a part of the consideration and inducement, the parties made an agreement that the things which were done should be done, there is no such finding in the record. And as before stated, we can not treat the facts found as evidence, and infer other facts to exist which are not directly found by the court. We must be able to say that the facts found show the conclusion required, that such was the intent and agreement of the-parties at the time the delivery took place. Now, the statement of facts minutely details what took place immediately before the delivery of the'possession, and there *is nothing whatever to show that Converse, Giddings & Bigelow came under any obligation whatever as to the future disposition of the goods. And these statements show not only that the court made no finding of any agreement as to the disposition of the goods, but probably would not have been warranted in making any such finding.

We are not called on, therefore, to determine the effect of any such intent or agreement to constitute a trust, and forbear to lay down any test by which to determine what particular acts agreed to be done in reference to the property would constitute such a trust as to bring the case within the statute. It would, indeed, be difficult to do so, and it may be observed, generally, that such acts as those which have been referred to, are in their nature equivocal, and their construction and effect might depend very much upon the circumstances of the case.

Not being able to find that any trust was created at the time when it would be properly created in tbe beginning of the transaction, and! when the property was delivered as a security for the debts, we can see no. foundation for the argument that the mortgagees, holding a legal security, subsequently agreed to surrender it and assume a trust. What happened afterward in the sale of the property can only be attributed to a disposition to realize the security. As before observed, whether the conclusions of fact from the evidence were correctly made by the district court, is a matter not presented for our consideration. We must be able to say that the conclusions of law upon the facts found are erroneous; this we can not do, and must therefore affirm the judgment.

Brinkerhoee, C. J., and Scott, Sutliee, and Peck, JJ., concurred.  