
    A. S. Bayne et al. v. A. F. Smith.
    Mortgage — Insolvency — Statutes of 1856.
    A mortgage not made in contemplation of insolvency and without a design to prefer some creditors to the exclusion of others does not come within the provision of the acts of 1856.
    APPEAL PROM LARUE CIRCUIT COURT.
    February 7, 1867.
   Opinion' op the Court by

Judge Williams :

As said by this court in Terrell et al. v. Jennings, 1 Metc. 450, a mortgage which is not made in contemplation of insolvency is valid and not prohibited by the Act of March 10, 1856, unless such mortgage be made in contemplation of insolvency and with a design to prefer some creditor to the exclusion of others, does not come within the provisions of the statute, which makes it inure to the benefit of all the mortgagor’s creditors.

Winter smith & Murray, for appellant.

Read & Ilowell, for appellees.

In this case the property mortgaged was more than ample to-pay the mortgage and all other debts of the mortgagor; besides he seems to have had a considerable amount of choses in action which he left in Hammon’s hands for collection, with orders to pay the money, when collected, on his debts, instead of defrauding or delaying his creditors or preferring some to the exclusion of others; his ability and intention to pay all is manifest. It was error to adjudge that the mortgage inured to the benefit of all the mortgagor’s creditors, wherefore the judgment is reversed.  