
    The Moline Plow Company, Plaintiff in Error, v. Wenger et al.
    
    Assignment for Benefit of Creditors: fraud : equity. Plaintiff procured from its debtor a trust deed on his land to secure its claim, and on this being discovered by other creditors, they threatened proceedings in bankruptcy against the debtor unless the deed of trust was released, and thereupon, by consent of all the parties, the debtor transferred all his assets to an assignee for distribution among all his creditors, and plaintiff released the land from the deed of trust. The assignee gave bond, but the deed of' assignment was not filed for record, the assignee having been informed by the plaintiff’s attorney that the recording was unnecessary. The assignee made distribution of all the assets realized, but was unable to dispose of the land at a fair price for nearly three years, when suit was brought by plaintiff to set aside the conveyance to the assignee and the release of the deed of trust, on the ground that the same were obtained on false and fraudulent representations. Held, that the bill was rightly dismissed.
    
      Appeal from, Morgan Circuit Court. — Hon. E. L. Edwards, Judge.
    Affirmed.
    
      James E. Hazell and Draff en & Williams for plaintiff in error.
    (1) The plaintiff is entitled to have the deeds of release cancelled and its lien against the land enforced. Wenger and the other creditors of Good having abandoned part of the agreement, it should be rescinded in toto. Life Ass’n v. Cravens, 60 Mo. 388; Estes v. Reynolds, 75 Mo. 563. (2) The creditors did not carry out the agreement. As in a composition deed, this should avoid the contract and plaintiff be placed in .the situation it occupied before it was entered into. Banlc v. Hoéber, 11 Mo. App. 475; s. c., 88 Mo. 37; Elfeltv. 
      
      Snow, 2 Sawyer, 94. (3) If it was the original intention of the defendants that the agreement under which the releases were obtained should not be carried out, then the plaintiff was deprived of- its liens by actual fraud. Tolcott v. Henderson, 27 Am. Rep. 501; Oswego ». Lendrain, 42 Am. Déc. 53 ; Cfoodwin 'o. Kerr, 80 Mo. 276.
    
      B. JR,. Richardson and Edmund Bv/rTce for defendants in error.
    (1) The acts of Carr, plaintiff’s attorney, were ratified by plaintiff. Southgate n. Railroad, 61 Mo. 89. (2) The omission of the assignee to file an inventory or discharge any other duty imposed cannot destroy the-rights of creditors. Hardcasile v. Fisher, 24 Mo. 70. (3) The validity of the deed of assignment cannot be-questioned by those creditors who voluntarily, and with full knowledge of all the circumstances, became parties-to it. Burrows v\ Jennings, 7 Mo. 424. (4) The appellate court will not weigh the evidence and disturb the verdict of the jury, or a court sitting as a jury, unless there is no evidence at all upon which to base it. Baum v. Fryrear, 85 Mo. 151; Banlc v. Murray, 88 Mo. 191; Judy v. Banlc, 81 Mo. 404; Chapman v. Mcllwrath, 77 Mo. 43; Cox v. Co'x, 91 Mr. 71; Chouteau v. Allen, 7ft Mo. 336 ; Erslcine v. Loewenstein, 82 Mo. 301; Taussig v. Shields, 26 Mo. App. 318.
   Noeton, C. J.

This' suit was commenced in the Morgan county circuit court, on the twenty-fifth of •December, 1875, against defendant Wenger and Martin Good, who has since died, and his heirs have been made parties. The averments in the petition are substantially as follows : That said Good for the purpose of securing to plaintiff the payment of two promissory notes, executed, two deeds of trust on land situated in Morgan and. Moniteau counties,' dated respectively on the seventh and tenth of February, 1873, conveying said land to John P. Carr as trustee ; that subsequently defendant Good, for the purpose of defrauding the plaintiff, falsely and fraudulently represented to the plaintiff that he was indebted to other parties, and desired to make a pro-rata distribution of his property among all his creditors, and by fraudulent means induced plaintiff to execute deeds of release rip on the property conveyed by the said deeds of trust, and thus surrender its security ; that said Wenger was a party to the fraud of said Good, and that said false representations were made by Good and concurred in by Wenger so that they could enjoy said premises free from said trust lien ; that by reason of said false representations plaintiff released, by quit-claim deeds, its deeds of trust, and said Good conveyed said lands to Wenger, who holds the same for his own benefit, and has neither attempted nor intends to dispose of said lands for the purpose of distributing the proceeds among creditors. The petition prays that the said deeds of release as well as the deeds from Good to Wenger be set aside, and that the lands be sold and the proceeds applied to the payment of the debt secured by said deeds of trust.

The answer of Wenger, after specifically denying all the allegations of fraud set forth in the petition, avers substantially as follows: That Good had numerous creditors including Wenger, besides the plaintiff; that the creditors of Good were about to put him into bankruptcy unless plaintiff would release its, security, to which plaintiff consented; that, at a meeting of the creditors of Good, the plaintiff was represented by John P. Carr, an attorney-at-law ; that, at the request of said Carr, Wenger consented to assume the responsibility of distributing such assets of Good as would be transferred to him pro, rata among the creditors of Good; that, in all of Ms actions respecting said assets, lie was guided by said Carr, plaintiff’s attorney, to whom he paid various dividends on plaintiff’s claim, and also paid various dividends to the other creditors of Good, setting forth the names of Good’s creditors, the amount of their respective debts, the dividends paid them, expenses incurred in collecting the assets and in defending litigation. The answer admits that the lands conveyed to him by Good were held in trust by him for Good’s creditors. Wenger then asks the court to relieve him from any further duties respecting said trust, and prays for the appointment of a new trustee to carry out said trust. This answer was denied by replication.

The evidence in the record abundantly establishes the following* facts : That Good, who was indebted to plaintiff and various other persons, in February, 1873, ■executed the two deeds of trust mentioned in the petition .to secure to plaintiff the payment of his indebtedness to it; that other creditors of Good, becoming acquainted with the fact that plaintiff had thus obtained a preference, became dissatisfied and informed Carr, the trustee and plaintiff’s representative, that they would put Good in bankruptcy unless plaintiff would release the deeds of trust; that plaintiff, after being consulted by Carr, agreed to release its security ; that, at a meeting of the creditors held at Tipton, plaintiff was represented by said Carr, and another agent, and it was agreed by plaintiff as well as by the other creditors of Good, that one C. C. McClay be appointed assignee to whom Good would assign his assets for distribution among all his creditors; that McClay declined to act as assignee, and at the suggestion pf said Carr, plaintiff’s agent and attorney, and other creditors, defendant Wenger was induced to act. The evidence satisfactorily shows that in pursuance of this arrangement, Good transferred his assets to Wenger; that Carr, as attorney, prepared the deeds of release from plaintiff to Good, and also the deeds from Good and wife to Wenger to tlie lands in controversy; that Wenger, as assignee, gave bond in the sum of three thousand dollars ; that the deed of assignment was not filed for record, said Carr, plaintiff’s attorney, having informed Wenger that it was not necessary to file it for record; that Wenger collected some of the assets, and placed said lands in the hands of agents to be disposed of for the benefit of Good’s creditors, and also placed in the hands of said Carr a considerable portion of the assets for collection ; that said Wenger, in pursuance of his authority and duty, on the thirty-first of May, 1873, distributed among the creditors $776.34, $214.60 of which was received by said Carr as the attorney of plaintiff, and that, on the third of September, 1873, he made another distribution among the creditors of $283.29, 182.50 of which was also paid to said Carr for plaintiff ; that neither of defendant’s agents in whose hands he had placed said lands was able to dispose of the same at a fair price, when, in December, 1875, plaintiff, by filing for record in the office'of the recorder for Morgan and Moniteau counties notices of the present suit, rendered :a sale of the land impracticable.

It also appears from the evidence that Wenger never claimed any of the assets assigned by Good only to-the extent of his distributive share as a creditor, and that in the management of said assets, he relied upon the advice of said Carr, up to the time of his death.

In view of the evidence and the admission in defendant’s answer that the land in controversy was only held by him in trust for the benefit of Good’s creditors, under the arrangement made with them, the decree of the court in dismissing the bill and entering judgment for defendants was fully justified, and the judgment is hereby .affirmed.

All concur.  