Tuck, J.,
delivered the opinion of this court.
When this deed was before the court on the former appeal—7 Md. Rep., 380—it was declared void in law, for matter apparent on its face; and tire cause was sent back under a procedendo. At the second trial, the defendant, now appellant, offered evidence that the clause, in reference to which this court had expressed its opinion, was inserted for the benefit of the creditors, in order to prevent loss, and that sales at auction would have produced less than was realized from the gradual sales in the usual way of carrying on the business of the grantors. The object being to remove the objection made by the court to that clause of the instrument. But, notwithstanding this proof, the court granted a prayer of the plaintiff, that “the deed is void in law,” from which ruling the defendant appealed; and the question presented by this state of the case is, whether the parol proof warranted a different decision on that prayer?
We understand, from the argument, that this evidence was offered under the impression that the court, on the former appeal, declared the deed to be void because there was nothing to show that this provision was designed to operate, and did operate, for the advantage of the creditors, and it is now insisted that, such evidence being in the record, the deed should ,be pronounced valid. That opinion, when considered with reference to the cases in this court upon the subject of these trust deeds, and referred to by the judge, does not admit of the interpretation now placed upon it. That the passage relied upon by the appellant’s counsel, considered alone, may sustain his view, might be conceded without placing that adjudication in conflict with previous decisions. This may be the case with many opinions, if portions are separated from the context, and considered apart from the reasoning of the whole, and the principle of the cases referred to. In using the words, “as this case at present stands,” the court must be understood as [183]*183having reference to the validity of the transaction upon' the deed alone, for we take it to be well settled that an instrument void in law, for matter appearing in the deed itself, cannot be made good by averment; and so we had decided in Green & Trammel vs. Trieber, 3 Md. Rep., 11. It was contended that the question of fraud should have been left to the jury, upon all the circumstances attending the transaction, but we answered, (page 40,) “There is nothing for the jury to pass upon, when the court can see that the instrument is fraudulent on its face. We are to look to the character with which the taw stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares such deeds to be void, it is no matter how the question of fraud, in fact, may stand.” And in 3 Md. Rep., 40, Sangston vs. Gaither, where it did not appear by the deed that the grantor, though requiring releases from his creditors, had conveyed all his property, and it was urged that he might have had other property to pay creditors, not provided for by the trust, we said, “This view of the case cannot change the character which the law gives to this assignment.” So, since this case was decided’, we have held the doctrine in Malcolm vs. Hodges, 8 Md. Rep., 418, that the validity of such deeds must be determined without regard to the surrounding circumstances, which, in that instance, were, that a large majority of the creditors had examined the affairs of the debtor, and concluded, unanimously, that it would be for the advantage of all the creditors that an assignment should be made, and the deed in question was executed accordingly; and, in reference to the argument of counsel, that the grantors had derived no benefit from the reservation, by resulting trust, and that the creditors were not injured by that feature of the deed, as there wa,s no surplus, it was said) “We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face.” Interpreting that part of the opinion, therefore, by the application of these [184]*184principles, which are the settled law of this court, we think that the only legal deduction, from the words now relied upon by the appellant’s counsel, is, that the circumstances there mentioned, which might sanction such a deed, where the grantors were manufacturers, and the power given was to work up unmanufactured materials, should appear on the face of the deed, in order that the court might determine, as a question of law looking to the deed alone, whether it was valid or void. It is not said, nor did we mean to intimate, that the nature of the trade or business, and the effect of carrying it on, or of selling in one way or another, could be shown by parol, so as to give effect to an instrument which, in the conclusion of the opinion, we declared to be void upon its face, that the court ought so to have pronounced it, and that there was nothing left for the jury to find.
Besides, we were remarking upon the case in 5 Eng. Law & Eq. Rep., 431, and its appositeness was placed upon the hypothesis of the Messrs. Turnbull being manufacturers of oil cloths, carpets, and the like, which they hav.e not shown themselves to be, even conceding that such evidence' could aid the deed.
It does not follow, from the views we have expressed in reference to provisions of this kind, that sales must be always-made immediately and .for cash, whether the interests of creditors will be affected or not. The trustee may be left to the1 exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions. Trustees are sometimes selected- by a portion of the creditors; sometimes, if not generally, by the debtor and a few who are to be preferred; and, often, most of the creditors are informed of the transfer when it is too late to protect themselves by any other means than attacking the deed. If these assignments are fairly and Iona fide made, the creditors, if consulted by the trustee, will know best how the trust should be conducted, and if sales, in any particular manner, will yield larger results, they will have the best reason for assenting to that mode. Thus the creditors can prescribe a law for the guidance of the trustee, which will fully protect him, and may accomplish for them what, under [185]*185the terms of the deed, he may not be able to effect. And, where the trustee is apprehensive of difficulty, or, for any reason, desires protection in the performance of his duties, he may invoke the jurisdiction of a court of equity, and proceed under its direction.
This evidence was offered “subject to all objections as to its admissibieness and effect.” A party may always, even without this qualification, ask the direction of the court upon the eilect of testimony in a cause. Here the right was expressly reserved. Whiteford vs. Burckmyer, 1 Gill, 128. The prayer conceded the truth of the defendant’s evidence, and the court, by sustaining it, in effect declared that the provisions of the deed could not be made operative by the parol proof.
It is also contended, that the factum of the deed was assumed by the prayer.
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Tuck, J.,
delivered the opinion of this court.
When this deed was before the court on the former appeal—7 Md. Rep., 380—it was declared void in law, for matter apparent on its face; and tire cause was sent back under a procedendo. At the second trial, the defendant, now appellant, offered evidence that the clause, in reference to which this court had expressed its opinion, was inserted for the benefit of the creditors, in order to prevent loss, and that sales at auction would have produced less than was realized from the gradual sales in the usual way of carrying on the business of the grantors. The object being to remove the objection made by the court to that clause of the instrument. But, notwithstanding this proof, the court granted a prayer of the plaintiff, that “the deed is void in law,” from which ruling the defendant appealed; and the question presented by this state of the case is, whether the parol proof warranted a different decision on that prayer?
We understand, from the argument, that this evidence was offered under the impression that the court, on the former appeal, declared the deed to be void because there was nothing to show that this provision was designed to operate, and did operate, for the advantage of the creditors, and it is now insisted that, such evidence being in the record, the deed should ,be pronounced valid. That opinion, when considered with reference to the cases in this court upon the subject of these trust deeds, and referred to by the judge, does not admit of the interpretation now placed upon it. That the passage relied upon by the appellant’s counsel, considered alone, may sustain his view, might be conceded without placing that adjudication in conflict with previous decisions. This may be the case with many opinions, if portions are separated from the context, and considered apart from the reasoning of the whole, and the principle of the cases referred to. In using the words, “as this case at present stands,” the court must be understood as [183]*183having reference to the validity of the transaction upon' the deed alone, for we take it to be well settled that an instrument void in law, for matter appearing in the deed itself, cannot be made good by averment; and so we had decided in Green & Trammel vs. Trieber, 3 Md. Rep., 11. It was contended that the question of fraud should have been left to the jury, upon all the circumstances attending the transaction, but we answered, (page 40,) “There is nothing for the jury to pass upon, when the court can see that the instrument is fraudulent on its face. We are to look to the character with which the taw stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares such deeds to be void, it is no matter how the question of fraud, in fact, may stand.” And in 3 Md. Rep., 40, Sangston vs. Gaither, where it did not appear by the deed that the grantor, though requiring releases from his creditors, had conveyed all his property, and it was urged that he might have had other property to pay creditors, not provided for by the trust, we said, “This view of the case cannot change the character which the law gives to this assignment.” So, since this case was decided’, we have held the doctrine in Malcolm vs. Hodges, 8 Md. Rep., 418, that the validity of such deeds must be determined without regard to the surrounding circumstances, which, in that instance, were, that a large majority of the creditors had examined the affairs of the debtor, and concluded, unanimously, that it would be for the advantage of all the creditors that an assignment should be made, and the deed in question was executed accordingly; and, in reference to the argument of counsel, that the grantors had derived no benefit from the reservation, by resulting trust, and that the creditors were not injured by that feature of the deed, as there wa,s no surplus, it was said) “We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face.” Interpreting that part of the opinion, therefore, by the application of these [184]*184principles, which are the settled law of this court, we think that the only legal deduction, from the words now relied upon by the appellant’s counsel, is, that the circumstances there mentioned, which might sanction such a deed, where the grantors were manufacturers, and the power given was to work up unmanufactured materials, should appear on the face of the deed, in order that the court might determine, as a question of law looking to the deed alone, whether it was valid or void. It is not said, nor did we mean to intimate, that the nature of the trade or business, and the effect of carrying it on, or of selling in one way or another, could be shown by parol, so as to give effect to an instrument which, in the conclusion of the opinion, we declared to be void upon its face, that the court ought so to have pronounced it, and that there was nothing left for the jury to find.
Besides, we were remarking upon the case in 5 Eng. Law & Eq. Rep., 431, and its appositeness was placed upon the hypothesis of the Messrs. Turnbull being manufacturers of oil cloths, carpets, and the like, which they hav.e not shown themselves to be, even conceding that such evidence' could aid the deed.
It does not follow, from the views we have expressed in reference to provisions of this kind, that sales must be always-made immediately and .for cash, whether the interests of creditors will be affected or not. The trustee may be left to the1 exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions. Trustees are sometimes selected- by a portion of the creditors; sometimes, if not generally, by the debtor and a few who are to be preferred; and, often, most of the creditors are informed of the transfer when it is too late to protect themselves by any other means than attacking the deed. If these assignments are fairly and Iona fide made, the creditors, if consulted by the trustee, will know best how the trust should be conducted, and if sales, in any particular manner, will yield larger results, they will have the best reason for assenting to that mode. Thus the creditors can prescribe a law for the guidance of the trustee, which will fully protect him, and may accomplish for them what, under [185]*185the terms of the deed, he may not be able to effect. And, where the trustee is apprehensive of difficulty, or, for any reason, desires protection in the performance of his duties, he may invoke the jurisdiction of a court of equity, and proceed under its direction.
This evidence was offered “subject to all objections as to its admissibieness and effect.” A party may always, even without this qualification, ask the direction of the court upon the eilect of testimony in a cause. Here the right was expressly reserved. Whiteford vs. Burckmyer, 1 Gill, 128. The prayer conceded the truth of the defendant’s evidence, and the court, by sustaining it, in effect declared that the provisions of the deed could not be made operative by the parol proof.
It is also contended, that the factum of the deed was assumed by the prayer. It is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary where the case is tried upon admissions at the bar. The jury may discredit the testimony, but they cannot find contrary to the agreement of the parties. Armstrong vs. Risteau, 5 Md. Rep., 276. Here the admission was for the appellant’s benefit. His defence was title under the assignment, of which there was no evidence. It was admitted at both trials, and, without reliance by defendant on this concession of the plaintiff, there was no impediment to his recovery.
This deed conveys partnership property only, and the evidence shows that it embraced all of that description. There is nothing to show there was any other. The case differs from Sangston vs. Gaither, and Malcolm vs. Hodges, in this, that here the deed does not stipulate for releases. As this feature of the case was not presented at either appeal, we decline expressing any opinion on the points it may involve; and advert to it now that this decision may not be considered a precedent in support of a like deed, if this objection should be raised hereafter.
Judgment affirmed.