washed away by a freshet, and was not at the time replaced, and to all appearances safe, the plaintiff could not recover, even though the stringers had not been removed by such freshet. The judgment must be reversed, and a new trial ordered. The other Justices concurred. CARLOS E. WARNER V. LOUIS B. LITTlefield. Fraudulent conveyances-Chattel mortgage-Assignment for benefit of creditors-Trust-Evidence. 1. The court erred in not submitting to the jury the questions of the existence, the extent, and good faith of the indebtedness named in the chattel mortgage under which plaintiff claimed, and whether the facts and circumstances attending the transaction had any tendency to substantiate the claim of the defendant that the mortgage was executed with intent to hinder, delay, and defraud the creditors of the mortgagor, for which error the judgment is reversed. 2. Expressions have crept into some decisions to the effect that if the property is conveyed in trust the instrument is thereby changed from a chattel mortgage to an assignment for the benefit of creditors; but such is not the law, unless the conveyance is absolute, and places the title of the property in the trustee. 3. The fact that the mortgagee is not a creditor of the mortgagor, and that the mortgage is executed in trust to secure certain specified creditors the amount of their several claims, does not tend in the remotest degree to give the instrument the character of a common-law assignment; citing Bagg v. Jerome, 7 Mich. 145; Adams v. Niemann, 46 Id. 136; Walker v. White, 60 Id. 427; Lyon v. Ballentine, 63 Id. 97. 4. A debtor, although insolvent, may secure a creditor for the payment of a pre-existing debt by a mortgage upon all of his 89 329 89 402 89 329 90 331 90 499 89 329 91 415 89 329 97 92 89 329 100 494 100 620 89 329 106 198 89 329 109 471 89 329 113 103 113 306 89 329 117 261 89 329 118 638 89 329 125 60 89 329 128 197 89 329 144 4597 89 329 149 221 89 329 152 9334 152 9336 property, although he may have numerous creditors who are unsecured; citing Sheldon v. Mann, 85 Mich. 265, and cases there cited. 5. The fact that the value of the property greatly exceeds the debt secured may be considered as having a bearing upon the validity of the mortgage, as having been given to defeat, delay, and defraud creditors; but it will not change the character of the instrument to a common-law assignment, and be therefore void in law. 6. Neither the fact of the debtor's insolvency, nor the knowledge on the part of the mortgagee of such fact, will defeat or impair a mortgage security taken for an honest debt. 7. It has been supposed that Kendall v. Bishop, 76 Mich. 634, lends support to the idea that a chattel mortgage is an assignment if its effect "is to put the entire assets, legal and equitable, into the hands of a trustee for sale and distribution;" but Mr. Justice CAMPBELL laid down no such doctrine in that case, as he was speaking of an instrument which transferred the legal title absolutely to a trustee for sale and distribution.1 8. There ought to be and there is some underlying principle from which to determine whether an instrument is a chattel mortgage or a common-law assignment. If the instrument is a conveyance upon condition, given as a security for a pre-existing debt, and contains no trust in its body whereby the property is withdrawn from the right of the mortgagor or others to redeem, who ordinarily have such right in cases of chattel mortgages, or whereby the title of the property is placed beyond the reach of execution as to any surplus, then the instrument is a chattel mortgage; but if it conveys the absolute title to a trustee for the benefit of creditors, and thus places the property and surplus beyond the reach of creditors, it is a common-law assignment. 9. The question whether the instrument is a chattel mortgage or an assignment for the benefit of creditors must in all cases be determined as a question of law upon the contents of such instrument, and not upon any outside testimony; and, unless the conveyance upon its face purports to convey all of the debtor's property to secure certain preferred creditors by an absolute title, the court is not at liberty to declare it a common-law assignment; and if facts appear outside of the instrument which tend to prove that it was executed with the intent that it should have the effect of such an assignment, or with 'See Gore v. Ray, 73 Mich. 385; Atkinson v. Weidner, 79 Id. 575. intent to evade the statute, it then becomes a question of fact for the jury to decide, and not for the court. Error to Wayne. (Reilly, J.) Argued November 6, 1891. Decided December 22, 1891. Trover. Defendant brings error. Reversed. The facts are stated in the opinion, where the points of counsel and the authorities are fully stated and reviewed. Julian G. Dickinson, for appellant. Griffin, Warner & Hunt, for plaintiff. CHAMPLIN, C. J. This action is trover. The defendant was sheriff of Wayne county, and pleaded the general issue, and gave notice that he seized the goods declared for, as sheriff of Wayne county, by virtue of certain writs of attachment issued out of the circuit court of Wayne county against Minnie Wertheimer, and that he would show that the claim to the goods set up by plaintiff was fraudulent and void against the creditors of said Minnie Wertheimer; that the mortgage, so called, under which the plaintiff claims, was made with intent to cheat and defraud her creditors; that it comprised substantially all of her property subject to execution; that it was given for the purpose of distributing her property to certain of her creditors in preference to others, and was made for the purpose of covering and concealing her property; that the plaintiff in said cause was not a bona fide purchaser, and is chargeable with notice of the facts and circumstances constituting the fraud perpetrated by the said Minnie Wertheimer in said transaction; that the said mortgage of said property to plaintiff did not comprise a large portion of the property of said Minnie Wertheimer, which she had concealed and covered by transfers to parties in St. Paul and Chicago, and to the Western Knitting Company, of Detroit, and to Max Pollasky, of Detroit, with the view to defeat and defraud her creditors; that a large portion of the indebtedness mentioned in said mortgage, and which is pretended to be secured thereby, is fictitious and fraudulent as against the creditors of the said Minnie Wertheimer, notably indebtedness therein mentioned to Max Wertheimer, Morris Wertheimer, and Joseph Wertheimer. On the 13th of December, 1889, Minnie Wertheimer, who was then engaged in business in the city of Detroit, under the name of Wertheimer Bros., executed a chatte! mortgage, in which she set forth that she was justly indebted to several creditors, naming them, and the amounts owing to each, and to secure the payment of such claims, and for the purpose of indemnifying Bernard Wurzberger and Freund Bros. against liability upon certain obligations, she mortgaged certain property, fully described in such chattel mortgage, to "Carlos E. Warner, of Detroit, Mich., in trust for said parties severally," upon certain conditions as follows: "The conditions of these presents are such that if I, the said Minnie Wertheimer, doing business as aforesaid, shall pay, or cause to be paid, to said Warner, trustee, the claims and demands aforesaid, and each and all thereof, within ten days from the date hereof, with interest thereon from the maturity of said several claims and demands, and shall keep and save harmless the said Wurzberger and the said Freund Bros. from liability as aforesaid, then this obligation shall be void, otherwise to remain in full force; and I, the said Minnie Wertheimer, agree to pay the same accordingly, and keep said Wurzberger and said Freund Bros. free and harmless from liability as aforesaid. "But if default shall be made in the payment of said debts and demands, or any thereof, and the interest thereon, or any portion thereof, within the time or manner herein provided; or if I, said Minnie Wertheimer, shall not keep and save harmless the said Wurzberger and said Freund Bros., or either of them, from liability as aforesaid; or if I shall sell, assign, or dispose of said goods and chattels (excepting those expressly excepted herein), or shall remove, or attempt to remove, the whole or any portion thereof from the premises aforesaid, without the written consent of said Warner, trustee, except in the usual course of trade; or if the said Warner, trustee, shall deem himself or said debts, or any of them, insecure, then, in each such instance, the said Warner, trustee, his successors or assigns, or his cr their authorized agents, are hereby expressly authorized to enter the said several premises, or any place or places where said goods and chattels, or any portion thereof, may be, and take possession thereof, subject to said exemption, and sell the same, or so much thereof as shall be necessary to pay the expenses incurred in and about the taking possession of said goods and chattels, and in the care thereof, and in and about the foreclosure of this mortgage, and the costs and charges, taxes and insurance, and services hereinafter mentioned, and the claims and demands herein before mentioned, and each and all thereof, and the interest thereon, and to keep and save harmless the said Wurzberger and Freund Bros. from liability as aforesaid, at public auction, to the highest bidder, or at private sale, in bulk or parcels, at his option. (anything contained in this mortgage to the contrary notwithstanding), after giving five days' notice of such sale, and the time and place of the same, by posting written or printed notice thereof in three public places in the city of Detroit and Cheboygan aforesaid. "The said Warner, trustee, is hereby authorized to insure said goods and chattels in such sum as he may deem proper to protect his interests in this mortgage, and the moneys paid therefor may be added to and become a part of the debts herein secured, and shall be payable forthwith, and draw interest at the rate of seven per cent. per annum. "The said Warner, trustee, is also authorized to pay all taxes that are assessed against said goods and chattels, and add the same to the debts herein secured, and to be payable forthwith, with like interest. "From the moneys realized upon this mortgage in any manner by said Warner, trustee, he shall pay and apply the same in the following manner, to wit: "First. He shall pay all of the expenses incurred by |