58 N.H. 529 | N.H. | 1879
The sum of $80, received by the trustee for the ox he sold, is held by the attachment. Pittsfield Bank v. Clough,
The plaintiffs contend that the defendant carried on the farm as agent of the trustee, and that the defendant's possession of the farm and personal property was the trustee's possession. But the defendant's agency was a pretence, and a part of the fraudulent transaction. By trustee process, B is not made the trustee of A's chattels, on the ground that they are A's property, in A's possession, under cover of a fraudulent sale to B, and a fraudulent agency of A. Fraud in this case, might invalidate the bill of sale and the title founded thereon; but the fiction of the defendant's agency did not transfer the possession of the defendant's property from the defendant to the trustee so as to make the trustee chargeable for such property in this equitable proceeding. There being no consideration for the conveyance, and the purpose being to defeat the defendant's creditors the defendant's agency was feigned. The trustee's title and the defendant's agency were a cover which may be removed from the defendant's chattels in the defendant's possession. The trustee cannot be charged for them *531 if the cover is not removed. Its removal does not show that the simulated agency was a real one.
It is argued that the trustee is estopped to deny his possession and the agency which he set up as a cover for the defendant's property. But the plaintiffs were not induced to change their position by their reliance Upon a possession held by the trustee through the agency of the defendant. On the contrary, they brought this suit relying upon the fact that there was no such agency and no such possession. It is a part of the plaintiff's case that such agency and possession, which did not exist if the trustee had no title, were as unreal as his title.
It does not appear that the plaintiffs can, by this process, obtain anything of value from the ox that died in the trustee's possession.
The trustee is liable for costs on the ground of fraud. Gen. St., c. 230, s. 43; Kent v. Hutchins,
Trustee charged for $80 and costs.
FOSTER, J., did not sit: the others concurred.