37 Vt. 407 | Vt. | 1865
N. W. Fairchild owes Lampson & Colton a note for $383.50. Lampson & Colton own the note jointly, — each owning an undivided half. Can the plaintiff hold N. W. Fairchild as the trustee of Lampson alone?
I. The trustee strictly speaking has no credits of Lampson’s in his hands. What he has is a fund belonging to Lampson & Colton, jointly. The plaintiff has no right to take a judgment against Fair-child for credits belonging to Colton. He cannot take a judgment for the whole debt due Lampson & Colton.
If he take a judgment for anything it must be for Lampson’s undivided half; and as we have no way to reach that but by a judgment for dollars and cents, the judgment if any must be for half the amount of the debt. If such a judgment be rendered and the plaintiff take out execution and collect it, one half of the sum so collected must be held as belonging to Colton. He has the right to insist that half shall be paid to him as fast as it is paid by his debtor. Shall the plaintiff then be allowed another judgment and execution for his half unpaid to him ?
So Colton has the right to sue for and collect his demand at once. He cannot get his half without collecting the whole. Shall he be •impeded by having a litigation between the plaintiff and Lampson suspend the collection of his debt ? Then if he exercise his right and collect the whole, shall Fairchild who has paid the whole be still, liable as trustee ?
The plaintiff claims that the decision in Bartlett v. Wood & Trustee, 32 Vt. 372, that the undivided half of a debtors interest in a chattel in the hands of the trustee may be taken on trustee process, involves the principle for which he here contends. We think not. There is an obvious difference between the rights of the joint owner in a chose in action and a chattel in possession of another. The former must be collected and reduced to possession ; it is not to be sold. We have no statute for that.
But the trustee of the chattel has only to deliver it to the sheriff and he sells the undivided half. The rights of the owner of the other half cannot be affected by such sale.
It is only as to his right to possess that his interest can be at all affected, and the decision referred to carefully limits the liability of the trustee to such chattels only as are in his possession, and decides nothing as to the effect of the other joint owner’s taking the chattel from the possession of the trustee.
2. It is insisted that the claimant, Addison E. Colton, has no status in court by which he can raise the foregoing objection. But it is to he noted that the trustee is held not liable because the joint debt cannot be the subject of trustee process in a suit against Lamp-son alone ; because W. F. Colton’s rights may be injured, - and not because Addison E. Colton has any claim.
In such a case Addison E. Colton as the holder of the note may object to a judgment not on his own account, but for W. F. Colton. Indeed, where the trustee is to be discharged because the debt he owes cannot be the subject of trustee process and a judgment might enure to the injury of parties not before the court, it would be the duty of the court upon knowledge of the facts to withhold judgment.
Judgment reversed as to trustee and judgment that the trustee is not chargeable.
