#### FRANK & ADLER v. I. HEINER & SON et al.

Execution of Deed — Assignment for Benefit of Creditors— Bejfietioñ of Trust by the Trustee named in Deed.

1. A deed is considered executed and the courts win enforce the same where the maker has gone so far with its execution that he cannot control it or recall what he has done, or by delivery to the grantee or to some one for him or by having it probated and registered.

2. The eestuis que trustent in a deed of assignment for the benefit of creditors are the real parties in interest and courts of equity will not allow them to be deprived of their estate by the failure or refusal of the trustee to act, but will, if necessary, appoint a trustee to execute the trust.

3. Where the assignors in general assignment for the benefit of creditors informed the person named as trustee that they had selected him, and asked him before registration of the deed whether he would accept and he replied ‘.‘that he would like to do so but could not answer until he saw B,” and the deed was then registered and the designated trustee refused to act; Held, that the deed was executed and valid as against attachments levied after the registration of the deed and equity will appoint a trustee in place of the one designated by and refusing to act under the deed.

Civil aotiok heard, on a case agreed, before Molver, J., at June Term, 1895, of Edgeoombe Superior Court. The facts appearing from the case agreed were as follows :

“1. That on the 22d day of May, 1894, the defendants, then residing in the city of Martinsville, Virginia, and doing business under the firm name of I. Heiner & Son, in the town of Rocky Mount, N. C., made and executed in the said City of Martinsville, what purported to be a general deed of assignment for the benefit of their creditors, and therein attempted to convey all of their property of every kind and description in the town of Rocky Mount, to L. E. Tillery as their trustee, for the purpose of carry*80ing out fully the purposes and intents of said alleged deed of assignment, said property consisting solely of personal property.

“2. That Simon Heiner, accompanied by his attorney, resident in the State of Virginia, came to Rocky Mount, and then to Tarboro, when said alleged deed of assignment was duly proven and recorded on the 23d day of May, 1894-, in the proper office in said county.

“3. That when said Simon Heiner arrived in Rocky Mount, as aforesaid, he, with his counsel, called on Tillery, the aforesaid assignee, and informed him of his selection as assignee, and desired to know if he would accept and perform the duties thereof. Tillery replied that he would like to do so, but could not answer until lie saw Thomas H. Battle, Esq., (in whose employ he was). Thereupon the said Heiner took the said deed and had same registered; and that after said deed had been registered, the said Til-lery was again called upon to take the place of assignee as named in said deed and perform the duties thereof; this he positively declined to do, and refused to accept the same.

“4z. That immediately after the refusal of said Tillery to accept the place of assignee, the defendants at once executed another deed of assignment, naming as assignee some other person than said Tillery; and thereupon, to-wit, on the _day of..., and after the registration of said alleged deed of assignment to the said Tillery, and before the second deed of assignment was offered for registration, the plaintiffs above-named levied their several writs of attachment upon all of the said property described and conveyed in said alleged deed of assignment, and under and by virtue of said writs of attachment, the-property therein described was sold by the Sheriff of Edgecombe county, and the proceeds of sale are now held by him to abide the deter*81mination of tbis action. The second deed of assignment was never registered.”

On the “case agreed” the plaintiffs insisted that the deed of trust or assignment executed by I. Heiner&Son was of no effect, by reason of its non-delivery and nonacceptance by the trustee named therein, and that they, by reason of their attachment, acquired the first lien on the property in question. The plaintiffs further contended that the deed was void also for failure of the assignor to comply with the act of 1893. On the other hand, the defendants, the assignors and creditors preferred in said deed of trust, insisted that equity would not allow the deed of trust to fail for want of a trustee ; that, if the legal title to the property remained in the assignors, such title and property was impressed with an equity in favor of the creditors whose debts were secured in said deed, and that the Court should so hold and appoint a trustee to execute said trusts. His Honor sustained the contentions of the plaintiff and rendered judgment in their favor and defendants appealed.

Mr. John L. JBridgers, for plaintiffs.

Messrs. Gilliam <& Gilliam, for defendants (appellants).

Furches, J.:

This appeal comes before us, from the court below, upon a case agreed, and the only question presented for our consideration is whether the assignment therein mentioned was executed. If it was executed the plaintiffs should not recover; if it was not, they should recover.

The general rule as to the sufficiency of execution seems to be this: That where the maker of the deed has gone so far with its execution that he can no longer control it or recall what he has done, then the deed is considered exe*82cuted and tbe courts will enforce the same. Kirk v. Turner, 1 Dev. Eq., 14. This may be done by delivery to the grantee or to some one for him, or it will be presumed by. his having it probated and registered. Helms v. Austin, 116 N. C., 751. And without something to rebut this presumption its registration is a delivery. McLean v. Nelson, 1 Jones, 396; Adams v. Adams, 21 Wallace (U. S.,) 185.

The plaintiffs contend that the presumption arising from the probate and registration is rebutted by the facts that Tillery said to Heiner before the registration, when asked to accept the trust, “That he would like to do so, but could not answer until he saw Thomas H. Battle”; and that after it was registered and he was applied to, he refused to accept the trust; and rely on Gaither v. Gibson, Phil., 532, for this contention. But we do not think so. In the case cited the defendant, before registration, refused to accept the deed upon the allegation of a defect in the title. And the Court held that this refusal of Gibson rebutted the presumption arising from probate and registration.

But in this case there was no refusal, by the trustee named, to accept the trust before the deed was probated and registered. But the intimation was that he would do so. What was said to Tillery, and by him to Heiner, before the registration, is no stronger for the plaintiffs and against the execution of the assignment than if he had known nothing about its execution, as in' McLean’s case, supra, and Adam’s case, supra. And in Adam’s case, as soon as the trustee was informed of the deed and that he was named as the trustee, he declined and refused to have anything to do with it. And yet the court sustained the execution of the deed, appointed another trustee and -enforced the trusts.

*83While it is necessary that there sould be a legal execution of an assignment like this to a trustee for the benefit of other parties it must be kept in mind that these other parties, the eestuis que trust, are the real parties in interest. They are the parties for whose benefit the deed was made. They are the equitable owners, and courts of equity will not allow them to be deprived of the benefit of their estate, because the trustee named refused to act. Burrill on Assignments (6th. Ed.) p. 312, Sec. 240, 241. It is a principle of equity that a trust shall not fail for the want of a trustee. If neccessary a court of equity will appoint á trustee to execute the trust. Adams’ Eq., 36 (7th. Ed.); Burrill, supra.

We are therefore of the opinion that the assignment stated in the case agreed was legally executed and should be enforced by the court under its equitable jurisdiction.

It is stated in the case on appeal “that plaintiff contended that this assignment wras void also for failure of the assignor to comply with the act of 1893.” There is nothing about the statute of 1893 in the case agreed, upon which the judge tried the case. And we do not know whether the grantor complied with this statute or not. If he did not, it would have been easy to so state in the facts agreed. Had this been stated in the case agreed, as one of the facts, it would have ended the case in plaintiffs’ favor, under the ruling of this Court in Bank v. Gilmer, 116 N. C., 684. But we cannot find the facts but must take them as agreed to by the parties.

There is error in the judgment appealed from and the same must be reversed.

Reversed.