| Mass. | May 18, 1898
This is a bill to compel the restoration of funds, the residue of the proceeds of the plaintiff’s stock in trade. He made an assignment for the benefit of creditors, but later went into insolvency. He then made an offer of composition and executed a bill of sale of the property previously assigned to the same assignees, of whom the defendant Mullen was one. The other, Williams, is out of the case by agreement. The bill alleges that this bill of sale, although absolute in form, was given only as security to Mullen and Williams for such money as they should advance in order to pay the offer of composition; and it seeks an account and repayment of the balance. The case was sent to a master, who found that the bill of sale conveyed, not an absolute title, but simply a title in trust to hold as under the previous assignment. The Superior Court
The main question raised concerns the finding of the master just stated. It is argued in the first place that oral evidence is not admissible to qualify the bill of sale. But it is so well settled that such a conveyance, although absolute in form, may be shown to have been made in trust or by way of security, that it is not necessary to do more than cite a few cases. Newton v. Fay, 10 Allen, 505. Campbell v. Dearborn, 109 Mass. 130" court="Mass." date_filed="1872-01-15" href="https://app.midpage.ai/document/campbell-v-dearborn-6416747?utm_source=webapp" opinion_id="6416747">109 Mass. 130. Minchin v. Minchin, 157 Mass. 265" court="Mass." date_filed="1892-10-21" href="https://app.midpage.ai/document/minchin-v-minchin-6424321?utm_source=webapp" opinion_id="6424321">157 Mass. 265. Riley v. Hampshire County National Bank, 164 Mass. 482" court="Mass." date_filed="1895-10-19" href="https://app.midpage.ai/document/riley-v-hampshire-county-national-bank-6425399?utm_source=webapp" opinion_id="6425399">164 Mass. 482, 486. Then it is said that there was no evidence to warrant the master’s finding. But the lawyer who acted for the plaintiff, and who witnessed the bill of sale, testified that, after many conversations with Mullen and Williams and their attorney, it was agreed finally that the plaintiff should give an absolute bill of sale to them to secure them, and that they should then carry out the terms of the composition, and that the balance, after satisfying them as to their fees and disbursements, was to be given to the plaintiff. Indeed, the defendant himself on cross-examination assented to the proposition that the bill of sale was given by way of security. It is very plain that we cannot set aside the master’s finding.
Some argument is directed against the proposition that the defendant now holds the property under the original assignment. But that was not the finding of the master or the language of the decree, which follows the master’s words. The language is that the bill of sale conveyed the property to Mullen and Williams, “ to hold in trust as they had held it under the assignment.” Of course even this language is not accurate. It does not mean that the bill of sale created a trust for creditors. But it does mean that it created a trust, with the same obligation as under the assignment to keep the fund identified and distinct, and with the same duty to hold for and pay over to Raphael any residue there might be.
Finally, it is urged that if the bill and the facts show any claim on the part of the plaintiff, it is only a debt, and not a
Decree affirmed.