Smith v. Wiley

41 Vt. 19 | Vt. | 1868

The opinion of the court was delivered by

PierpoiNT, C. J.

This case comes before this court on exceptions taken by the trustee to the decision of the county court, making him chargeable.

It appears from tbe commissioner’s report, that the principal .debtor was largely indebted to one Wilson, wbo wanted security for Ms debt. The trustee gaye Ms notes to Wilson for the amount of such debt, and the said principal debtor thereupon gaye the said trustee a deed of three quarter-sections of land, under an agreement that the said trustee should hold the same until he had a good opportunity to sell it, and when sold the avails should be applied to pay the said trustee the amount he had become liable for, to Wilson, and the balance, if any, to be paid to the prmcipal debtor or for his benefit.

Afterward the trustee sold one quarter-section of this land to a brother of the principal debtor, and, by agreement with the said debtor, took in payment a note which the purchaser held against him. The other two quarter-sections the trustee sold for the sum of 6400 dollars, receiving in cash 2900 dollars, and for the balance he took the purchaser’s notes, secured by a mortgage upon the lands sold. The notes and mortgage were made running to himself. These notes had not been paid at the time of the hearing before the commissioner. It appears further from the commissioner’s report, that, at the time of the hearing, the amount of the cash received and the notes taken for the said two quarter-sections, exceeded the amount of the said trustee’s claim thereon by about 1013 dollars; and it is for this sum that the plaintiff seeks to make the trustee chargeable.

The trustee insists, that he should not be made chargeable, because he had not collected the money on the notes he took for the land, and had not received in money sufficient to reimburse Mm-self for the money he had paid to cancel his liabilities for the prmcipal debtor, and that he holds the said notes as securities for the benefit of, and as agent of, the principal debtor, so far at least as the excess is concerned. If this be so, then if is clear he can not be made chargeable in this suit; for the principle is well settled in this state, that a man can not be made liable by a trustee process for notes or securities which he holds for the benefit of, and as agent of, another.

The question then arises, how did the trustee hold the notes in question ? Did he hold them in his own right as his own property, or as agent for the principal debtor'?

The legal' title to the land sold, was In Mm. Upon its sale be took the notes payable to himself, and took the- mortgage to himself; he had the sole and entire control of both.

The commissioner finds that the notes were received and are now held by the trastee as his own property, and not as the agent of the principal debtor. The counsel for the trustee claims that this is only a statement of a legal conclusion based upon the facts before reported, and that such facts are not sufficient to warrant it.

But the commissioner has not so reported it, and there is nothing in the case to indicate that he so regarded it. It stands as a fact found by him from the evidence wMch he had before him, and as such we are bound to consider it.

The fact being established that the trustee has taken these notes, and appropriated them to liimself, and converted them to his own use, he must stand in respect to them and the principal debtor, in the same position that he would if he had actually received the money upon them. The principal debtor would have an undoubted right to call upon him for the surplus. This being so, the trustee was properly made chargeable in this suit.

The judgment of the county court is affirmed.