| Ga. | Aug 15, 1878
If Tucker, the creditor, had levied upon the property as the property of Zimmerman, the debtor, in the first instance, Plumb as trustee might have interposed a claim without making Mrs. Zimmerman and her son parties. The verdict rendered on the trial of such a claim, would have bound the trust, as well as the creditor. Instead of attacking the trust title by levy, and thus bringing on the issue by means of levy and claim, the creditor filed a bill, assailing the trust deed as fraudulent and void in so far as it operated against him as a creditor of Zimmerman, the creator of the trust. Why would not the trustee be as competent to represent the beneficiaries in trying this question on a bill in equity, as in trying the very same question in a claim case at law ? When a deed is attacked as fraudulent and sought to be set aside, why should parties to the bill be necessary, other than the direct parties to the deed ? The parties to the deed were Zimmerman, of the one part, and Plumb, as trustee, of the other part.
The parties to a deed commit a fraud for the benefit of third persons, and the legal title to the fruits of the fraud is put by one party to the deed into the other party, and there it still is, why should those whose benefit was intended, but who took no part in the fraud, be made parties to a bill which attacks the fraud and aims to set it aside ? The trustee holds for them and represents them. Certainly he could sue a stranger for the property without making the beneficiaries parties. Why, then, cannot strangers sue him for it ? The right asserted in opposition to the trustee does not arise under the trust deed, but is prior to it and superior to it.
Judgment reversed.