42 N.H. 495 | N.H. | 1861
At tbe time of the service of this writ upon the trustees, the firm of Sides & Jenness were owing the principal defendant a note of eleven hundred dollars, which they had secured by a mortgage of certain horses, carriages and harnesses, which they had purchased of said principal defendant, and for which said note was given; and it had been arranged between the parties to said note and mortgage, that the trustees, being the mortgagors, should hold possession of and use this property in their business, until they had paid off the claims of Fern aid & Son, when they proposed to pay this debt and discharge this mortgage.
But in any case where a man holds property in pledge, or on mortgage, having a lien upon it for the payment of his own debt, or where it is merely deposited with him, and he is trusteed, the plaintiff does not thereby acquire any right to or lien upon the specific property thus in the hands of the trustee. This is settled in Wolcott v. Keith, 22 N. H. 205; where it is expressly held that the service of the trustee process gave the creditor no right or lien upon the specific property in the hands of the trustee, but would only render him pez’sonally liable for its value, in case of any misappropriation of the property by him, or failure to produce and account for it, according to the provisions of the statute.
It is true that, if the property of the principal defendant was in the hands of the trustee, he might have been made liable for the same, or its value; and for that reason the
It has been held, to be sure, that the service of the writ upon the trustee who has property or credits of the principal defendant in his hands, is an attachment of the principal defendant’s property, so far as to bring the case within the provisions of the statute which provides for proceedings against non-resident debtors, when their property has been attached in this state. Rev. Stat., ch. 186, sec. 5; Comp. Laws 480; King v. Holmes, 27 N. H. 266; Young v. Russ, 31 N. H. 201. Yet, although for this purpose the service of the trustee process is considered an attachment of the principal defendant’s property, and
But, in the case at bar, the trustees can not be said to be chargeable on account of holding the defendant’s property in possession. The principal defendant, although he had a mortgage of the property, had never foreclosed that mortgage, or demanded payment on his note, or taken possession of the property. He had no attachable interest in the property. Sissons v. Bicknell, 6 N. H. 557; Kelley v. Burnham, 9 N. H. 20; Glass v. Ellison, 9 N. H. 69. All that the plaintiff gained, then, by his trustee process, was to hold the trustees personally responsible for his debt now in suit, on account of their indebtedness to the pi’incipal defendant, upon their note to him. For the principal defendant had no attachable interest in the property mortgaged to him, and the plaintiff' made no effort to attach it as his; and by the service of this writ upon the trustee he acquired no right to or lien upon it. The trustees, Sides & Jenness, were chargeable to the amount of their note to the principal defendant, at the time of the service of the process upon them, and the subsequent transactions between the parties have not changed their liabilityj and although Jenness, by his subsequent promise to pay all these partnership debts, has made himself liable to Sides for the performance of that agreement, yet the plaintiffs have no claim upon him alone, but must hold the firm which was indebted to the principal defendant when process was served upon the trustees.
Nor can the plaintiff, by holding the trustees chargeable upon the note, hold the property which they had mortgaged to the principal defendants to secure that note. The only attachable interest in such property, before foreclosure, is the interest of the mortgagor — his right to the
I know that it is held in Massachusetts and in some other states, that the service of the trustee process constitutes a lien, for certain purposes, in favor of the plaintiff, on the specific property of the debtor in the hands of his trustee. Burlingame v. Bell, 16 Mass. 318; Platt v. Brown, 16 Pick. 553; Rockwood v. Varnum, 17 Pick. 289. But it has been distinctly held the other way in this state, as we have already seen, in Wolcott v. Keith; and, beside, if it had not been so held, the Massachusetts doctrine does not go far enough for this case, as in law, for all the purposes of attachment, this mortgaged property was, as we have seen, not the property of the debtor, but of the trustee.
But it is claimed by the plaintiff that the trustees are to be charged upon another ground; that this note of the trustees which came into their hands, together with the mortgage given to secure it, after the service of the process upon them, is to be treated, so far as creditors are concerned, as an unpaid note and an uncanceled mortgage of some third person, which had come into the trustees’ hands, after the service of the process on them, and for which
This view can not be sustained, however. The note was either an outstanding note, due from the trustee to the principal defendant, or some assignee of his, or it was a note paid and canceled, .and, of course, void. And the same would be true of the mortgage. As to some persons and for some purposes a note may be paid and canceled, while as to other persons and for other purposes it must be treated as unpaid and uncanceled. Suppose the trustees had, after service of the plaintiff’s writ on them, gone and paid the defendant the full 'amount' of the note and interest, and taken it up, with the mortgage, and destroyed both, as they did in this case. The transaction would, perhaps, have been honest as to all the world except this plaintiff, but it would have been a fraud upon him and his rights; and, therefore, the whole transaction, as to him, would have been void, and the note would, as to him, be treated as still due and unpaid, and the trustees would be charged as before. Nor does it alter the case that the trustees paid only $800 on the note. The defendant agreed to take that sum in full payment of the note, and he can not now claim that it is not paid. Whether it was all paid, or half paid, or given up without any part being paid, is immaterial; it was all a fraud, as to this plaintiff and his rights, and, as to him, was all void, and left the parties standing, as to him, just as before, leaving the trustees as much chargeable to him for the $800, which they really paid, or procured to be paid, as for the $300, which was not paid. And it would be the same if nothing had been paid.
The entry that the trustee should be charged for the note and mortgage, should not have been made; nor