MR. JUSTICE GARY.

(After stating the facts.) The first question that will be considered is, whether there was error on the part of his Honor, the Circuit Judge, in not rendering judgment in favor of the plaintiff, for the amount of the note mentioned in the complaint. The record does not show, that the Circuit Judge passed upon the question, whether the plaintiff was entitled to judgment on said note, nor does the decree purport to be final upon all the issues.

The plaintiff can, therefore, ask for judgment when the case is remanded.

The next question for determination is, whether there was error on the part of the Circuit Judge, in concluding that the deed was not void under the assignment law. In reaching a conclusion as to this question it will be necessary to determine several facts: (1) Were W. A. Bowman and the Sumter Banking and Mercantile Co. insolvent when the deed was executed.? The recitals in the deed, the statement in the decree and the testimony satisfy us, after most careful consideration, that not only the Sumter Banking Mercantile Co., but W.A. Bowman, also were insolvent at that time.

We do not deem it necessary to state, in detail, the facts and circumstances upon which this conclusion is based. There is one fact however to which we desire to call special attention. The statement of the liabilities and assets of W.A. Bowman hereinbefore set out, shows conclusively that his additional liability as endorser, on the notes and obligations of the Sumter Banking and Mercantile Co. made him hopelessly insolvent.

(2) Did W.A. Bowman intend to convey and assign, all his property both real and personal? The sixth section of the deed is as follows: "That the said party of the second part (W.A. Bowman) shall forthwith and by this instrument, convey and assign unto the said trustees all of his property real and personal." * * * The twenty-third section recites, that "all of the accounts and choses-in-action, of the party of the first part, and of the said W.A. Bowman, have heretofore been assigned to the Bank of Sumter, except such as were specially assigned to other creditors." These sections show that prior to the deed, W.A. Bowman had disposed of all his accounts and choses-in-action, and that it was his intention, when the deed was executed to convey and assign all his property, both real and personal, and that no part thereof was reserved to him.

The respondents' attorneys, however, contend that the force and effect of the provisions of these sections were rendered ineffectual, for the following reasons, to wit: "It cannot be contended that the deed has the legal effect, of conveying all of Bowman's property, for the reason that the evidence shows, that the trustees became possessed of all property and assets actually conveyed, and claimed no other property or assets than those of which they were possessed." In other words, that a breach of duty on the part of the trustees, in failing to take possession of the property conveyed and assigned to them, would defeat the right of an outside creditor to have the terms of the deed enforced. It is only necessary to state such a proposition to show that it is untenable, and would subject the trustees to liability, for a breach of duty.

(3) Did the deed contemplate that a surplus of the proceeds should be returned to W.A. Bowman before all his creditors were paid? This question is easy of solution, if we but keep in mind, that the words, "the creditors" have reference to those who were parties to the deed, and that the words, "the creditors" and "said creditors" were used interchangeably. We deem it only necessary to refer to section thirteen of the deed, to show that this question must be answered in the affirmative.

(4) Did the deed intend a preference to those creditors signing it over other creditors who might not see fit, to accept its provisions? The deed is quite lengthy and we shall not undertake to discuss, separately, the provisions of the various sections. We desire however to call special attention to section thirteen, which contains this provision: "That this agreement may, by endorsement hereon in writing, by the party of the third part, and of all the said creditors be continued in full force, in all of its terms and provisions, after December 31st, 1908, for one year, and from year to year thereafter, until all of the indebtedness due to the said party of the third part, and the said creditors shall have been fully paid and liquidated." It then provides that the surplus shall be conveyed to the party of the first part, and to W.A. Bowman, but makes no provision for those other than "the said creditors." This section not only gives a preference to "the creditors" in the distribution of the funds, but in the management of the trust estate.

We are therefore forced to the conclusion that the deed was null and void under the assignment law.

The last question for consideration is whether the deed was obnoxious to the statute of Elizabeth. The deed shows upon its face, that the enforcement of its provisions would necessarily tend to hinder and delay (perhaps indefinitely) the plaintiff and other creditors of W.A. Bowman in the collection of their claims, who might not see fit to accept its terms. This fact alone is sufficient to show that the deed was repugnant to said statute.

The question whether the plaintiff is estopped from maintaining this action, by reason of the fact, that he, as vice president of the Richmond Guano Co., alone signed the trust deed in behalf of that corporation, was not ruled upon by his Honor, the Circuit Judge, and no notice was served by the respondents' attorneys that they would rely upon such proposition to sustain the judgment of the Circuit Court. Therefore, the question is not properly before this Court for consideration.

For these reasons I think the judgment should be reversed.

MR. CHIEF JUSTICE JONES concurs.

MR. JUSTICE WOODS:

The trust deed executed by W.A. Bowman and the Sumter Banking and Mercantile Company to R.I. Manning and others as trustees for creditors could hardly have been made more complex and difficult to understand. Careful consideration leads me to the conclusion that no moral fraud or wrongdoing was contemplated, but I concur in the conclusions reached by Mr. Justice Gary (1) that the debtors were insolvent when the deed was executed, (2) that the intention was to convey the entire property of W.A. Bowman as well as that of the Sumter Banking and Mercantile Company, (3) that the deed contemplated the payment of the creditors mentioned in the deed to the exclusion of other creditors, and (4) that it provided for the return of the surplus of the property to the debtors instead of its application to the claims of other creditors not mentioned in the deed. Under this state of facts it inevitably follows as a conclusion of law that the deed was voidable at the instance of creditors not provided for because obnoxious both to the assignment act and to the statute of Elizabeth. Jacot v. Corbett, Cheves' Equity 71; Stuart v. Kerrison, 3 S.C. 266; Claflin v. Iseman, 23 S.C. 416.

In reaching this conclusion notice should be taken of the following provision appearing in the deed as the twenty-fourth clause: "That the trustees shall apply the proceeds of sale and collections from the individual property of W. A. Bowman, only, to the payment of the individual debts and obligations of the said W.A. Bowman, including his endorsements and guaranties." If this stood alone it could well be construed as providing for a ratable distribution to all the creditors of W.A. Bowman, but this construction would be inconsistent with and entirely defeat the thirteenth clause which provides that after the creditors specially mentioned in the deed have been paid, the surplus shall be paid over to the debtors. If the two clauses are to be construed together and both given effect then "the individual debts and obligations of the said W.A. Bowman" mentioned in the latter clause must be held to refer only to those debts and obligations mentioned in the thirteenth clause. If the two clauses are to be regarded absolutely irreconcilable then that which appears first in the deed and provides that the debtors and not the creditors shall receive the surplus in the hands of the trustees must be given effect in preference to that which is afterwards written. It is, however, but just to the parties interested to say that they made an offer to the plaintiff that he should come in and have the benefit of the terms of the deed as if the twenty-fourth clause of the deed stood alone, unlimited by the thirteenth clause; and the Circuit Judge held that he could yet come in and receive all the benefits of the deed of trust. There was no exception to this finding.

Notwithstanding the conclusion that the deed was voidable under the statute of Elizabeth and the assignment statute, it seems to me clear that the plaintiff is estopped from attacking the transaction. The suit is at the instance of the plaintiff alone and for his benefit alone. He does not sue for himself and other creditors, and if there be other creditors of W.A. Bowman, the record does not disclose that any of them have complained or sought to set aside the deed. Therefore if the plaintiff has taken action which makes it inequitable that he should be heard to attack the deed the case is at an end.

On the subject of estoppel the Circuit Judge said in his decree: "I have not considered the circumstance that the plaintiff, as president of a corporation, signed the deed of trust for his corporation as one of the principal creditors. I do not think it necessary to decide upon the legal effect of such an act; but its moral force is of consequence when a chancellor comes to ask himself in the consideration of a cause whether a wrong has been done." This language, it is true, does not indicate very clearly the extent to which estoppel entered into the conclusion of the Court, but it does indicate very clearly that it was taken into consideration. This being so, when respondents' counsel relied on estoppel in this Court they were not introducing into the case a new ground not relied on by the Circuit Judge. It was not necessary, therefore, for respondents' counsel to give the notice required by rule five that they would rely upon estoppel as an additional ground in support of the Circuit decree. At the least, the applicability of the rule is extremely doubtful; and when that is so, it should not be applied so as to exclude an issue of vital importance to a just decision on the merits of the case.

The execution of the trust agreement and conveyance on the part of the Richmond Guano Company was by the hand of the plaintiff as its vice president. An officer of a corporation is not estopped as an individual by signing a deed for the corporation under the direction of the board of directors or superior officers of the corporation. The just rule, however, and that which is supported by the current of later judicial expression is that estoppel arises against one as an individual when he, as an officer of a corporation or in any representative capacity, voluntarily participates in the making of a deed or other transaction on behalf of the corporation, and the other parties to the transaction incur expense or are put at a disadvantage by acting under the agreement in reliance upon his approval and participation. This is the principle on which the following cases were decided. In Hancock v. Caskey, 8 S.C. 282, it was held that when lands were sold under a decree for partition, without reservation of the growing crops, a guardian ad litem of the infant defendants was estopped from claiming such crops as his property. In Mortgage Co. v. Walker (Ga.), 46 S.E. 426, the act of the plaintiff in signing a deed as agent was held to estop him from asserting title in himself. The Court said: "The deed may have been the act of Mrs. Walker, but the recitals of fact and the representations bound the conscience of the agent, and estopped him from using any right or title outstanding in himself." In Bank v. Bank (N.C.), 50 S.E. 848, one C. was the president of a corporation which had conveyed the property in dispute. The Court said: "True, this was a conveyance by the corporation, and therefore is not an estoppel against C. as an individual. But he signed the deed for the company as its president, and this covenant that the property is free from incumbrances amounts to a representation by him that this is true."

In Wells v. Steckelberg (Neb.), 66 Am. State Rep. 529, it was held that if one assumes in a representative capacity to sell and convey to another the entire estate in land, he is estopped from setting up an estate therein in his own right against the purchaser. In Schnable v. McNeill (Texas), 110 S.W. 558, an administrator conveying under order of the Court property in which he as an individual owned a life interest was held to pass his own interest by estoppel. In Tomlinson v. Drought (Tex.), 127 S.W. 262, it was held that where executors conveyed property under a trust deed as belonging to the estate, they were estopped from claiming that any part of it belonged to them personally. In Brock v. Rogers (Mass.), 69 N.E. 334, one who by leave of Court had sold as guardian land standing in the name of his ward was not allowed to set up an adverse title in the land in himself. See also 11 A. E. Ency. 397 and 16 Cyc. 712.

There is a presumption that an officer who signs a deed on behalf of a corporation participated in the negotiations which led up to it, and approved its execution. If the plaintiff was compelled by his superiors to sign the deed or if he, as an individual, intended to attack it, good faith required him to speak before he participated in it, and before the defendants had acted under it and incurred the expenses necessarily incident to the execution of the trust. The record affords no explanation of the plaintiff's course in participating in the trust agreement on behalf of a corporation in which he was interested, and afterwards attacking the agreement as illegal and fraudulent when the defendants had incurred expense in carrying it out. Under the facts here appearing it seems to me that the plaintiff is estopped from alleging against the validity of the trust deed and agreement.

The judgment of the Circuit Court stands affirmed by reason of an equal division of this Court.

MR. JUSTICE HYDRICK concurs.

February 1, 1911.

PER CURIAM.

The questions referred to in this petition having been fully considered in the opinion of the Court, it is ordered that the petition be dismissed and the order staying the remittitur be revoked.