40 N.H. 208 | N.H. | 1860
It appears by the disclosure that the defendant was largely indebted to the trustee, and had delivered to him negotiable promissory notes, secured by mortgage upon real estate, as collateral security for said indebtedness; and that, subsequent to this, the trustee had signed a certain guardian’s bond with the defendant, at his request, with an agreement that the trustee should hold said securities also as indemnity against any liability upon said bond; all which was done before the service of the trustee process in this suit; and that said debt from the defendant still remains due and unpaid, and that the trustee’s liability still-continues upon said bond, and will be likely to continue for some years to come. It also appears that if the trustee should suffer no loss or damage in consequence of signing said bond, and that if said
The first question raised is, whether the trustee, upon the facts disclosed, would be chargeable, were there no liability upon the guardian’s bond, and were the notes holden by him merely as collateral security for the debt of the principal defendant. The plaintiff claims that the trustee would be thus chargeable, under sections 15 and 16 of chapter 208 of the Revised Statutes [Compiled Laws 529], which are as follows:
Section 15. “ If, upon the disclosure of any person summoned as trustee in the Court of Common Pleas, or upon the trial of an issue between him and the plaintiff, it shall appear that such person had in his possession, at the time of the service of the process upon him, or afterward, any promissory note, order, receipt, bill of exchange, bond, or other promise for the payment of money, or the delivery of property belonging to the principal defendant, the court may appoint a receiver, whose duty it shall be, under the direction of the court, to collect and apply the proceeds to the payment of the debt and costs recovered by the plaintiff against the principal debtor, and to pay the surplus, if any, to such debtor.”
Sec. 16. “ If it shall appear, as aforesaid, that the person summoned as trustee had in his possession, at the time of the service of such process, or afterward, any personal property of the principal defendant, and that the same is subject to any pledge, lien or mortgage, and at the time of the disclosure has not been sold by the trustee, the court may appoint a receiver, whose duty it shall be, under the direction of the court, to dispose of the same, if a greater amount than the sum due can be obtained therefor, and after paying the amount of such pledge, lien or mortgage, to apply the balance as aforesaid.”
The trustee claims that he is not chargeable under either of the sections of the statute referred to. His position is undoubtedly correct so far as section 15 is concerned, as this section evidently does not make any reference to any interest of the trustee in the notes or other property specified in that section, either as pledgee or otherwise. The receiver is to collect and apply the avails, first, to pay the debt and costs recovered against the principal debtor, and then to pay over the surplus, if any, to such debtor. He is required to treat the notes and other property specified as the absolute and exclusive property of the principal debtor, and no provision is made in that section to protect the rights of the trustee or any body else as pledgee of such notes. The position that the trustee is not chargeable under section 16 aforesaid, is based upon the ground that the words “personal property” cannot properly and should not be construed as covering and embracing choses in action ; that the words personal property are not more comprehensive than the words, “goods, chattels, rights or credits,” in the 8th section of the same chapter; and it is contended that it has been held that, under that section, a trustee could not be charged when he owed the principal defendant upon a negotiable promissory note, or when the trustee holds in his possession notes of third persons belonging absolutely to the principal debtor; and the argument assumes that such decisions have been made upon the ground that the terms, “ goods, chattels, rights or credits,” were held not to be broad and comprehensive enough to cover and include
It had, also, been held that, under the provisions of the law as they then existed, a trustee could not be charged for a negotiable promissory note, which he mjght owe to the principal debtor, nor on account of such notes of third persons, or other choses in action belonging to the debtor, which had been deposited with the trustee. Haven v. Wentworth, ante; Stone v. Dean, 5 N. H. 502; Fletcher v. Fletcher, 7 N. H. 452. But it was so held, not because it was understood that the words, “ goods, chattels, rights or credits,” in the existing statutes, could not properly be construed as including negotiable notes and other choses in action, as is assumed in the argument here, but for a far different reason. In Stone v. Dean, 5 N. II. 502, JEtichardson, C. L, says, “It is settled that a trustee cannot be charged by reason of choses in action deposited in his hands.” He then adds : “It has always been considered as settled in this State, that a trustee who had given a negotiable note to the principal, cannot be charged as a trustee on account of such note. The reason of this rule is founded upon the negotiable quality of the paper. If the trustee could be charged in such a ease, then it might
The provision in section 16, that the receiver shall be appointed where the property held in pledge or upon mortgage “at the time of the disclosure has not been sold by the trustee,” was not in the original statute of 1841, but was inserted at the revision in 1842, for the very plain reason that where a pledgee had, in pursuance
The decision of this question makes it apparent that the trustee in this suit may he chargeable upon his disclosure, although there are not sufficient facts appearing in the disclosure to show whether he is in fact so or not. It appears probable that there may be a large balance in the trustee’s hands, over and above paying the debt of Goodall to the trustee, when the debts are all collected which the trustee holds as security, as upon the facts stated it would seem probable that they may be. The trustee does not state, and at the time of his disclosure had not, it would seem, made such examination as to know what the amount of such balance might be. He thinks it would be several hundreds, and it may prove to be several thousands of dollars. How the trustee’s liability upon the guardian’s bond will affect the ease can hardly be determined upon the facts before us. It does not appear what
According to the agreement of the parties in the case,
The trustee must make a further and full disclosure.