13 Vt. 129 | Vt. | 1841
The opinion of the court was delivered by
Our trustee process is but the attachment of debts ; choses in action, instead of choses in possession, or in common with them. They must be such debts as the defendant can enforce in his own name. I speak not now of an action by a creditor, claiming from a fraudulent purchaser, provided for by a recent statute. When the trustee is pursued for a debt, he must be an actual debtor by a debt now due, or solvendum in futuro. This was fully decided in Sargent v. Leeland, 2 Vt. R. 280. Hutchins v. Hawley et al. 9 Vt. R. 295, and in Hitchcock v. Edgerton, 8 Vt. R. 202. The debt, too, for which the trustee is pursued, must be a debt which the defendant could himself pursue at law. It is impracticable thus to enforce a mere equity claim. The want of chancery power, in the county court, to call all the parties incidentally interested before them, and to pursue such a course as to determine their respective and conflicting rights, renders it impracticable. Otherwise two or more co-
In this case Swift executed his note, at Ball’s request, to Blake, and which Blake holds for his liabilities for Ball; and all this in good faith. It is not a case of a note taken to Blake for Ball, as a naked trustee, without interest, nor done to avoid the debts of Ball. Ball could sustain no action at law, against Swift; neither can he sustain any action against Blake, for Blake has received nothing, not even enough to pay his liabilities.
A condition was annexed to the note of Swift, that he was not to pay until the mortgage on the land was removed therefrom. That mortgage was to Allen, to secure him against the claims of the heirs of John Ball, deceased, and of Hannah Ball. It may be possible that the receipts of these heirs and their guardians would be a sufficient security that they never will or can claim any thing. But Swift had the right to annex what condition he pleased to his contract. He did annex the condition that he was not to pay until the incumbrance was removed from the land. The clear meaning of that is, that it should be removed in a manner known to the law, that is, by deed from Allen, the mortgagee, or by his discharge on the record, according to the statute. Swift is not to be compelled to pay and then take on himself the risk of future controversy with those heirs and with the mortgagee, who will not be bound by any adjudication which can be made in this proceeding, to which they are not parties. The impropriety of attempting to sustain, at law, a proceeding involving the respective and conflicting obligations, rights and duties of so many persons, not parties to the record, is quite too obvious to require further remark.
Judgment reversed, and judgment that Swift & Blake are not trustees.