Page v. Smith , 25 Me. 256 ( 1845 )

The opinion of the Court was drawn up by

Whitman C. J.

The scire facias is against the defendant as the trustee of Nathan T. Smith; and comes before us upon exceptions to the adjudication of the District Court, that the defendant, upon his disclosure made in this suit, taken in connection with his disclosure in the original suit, was chargeable to the extent of the amount of the debt due to the plaintiffs from said Nathan. When a cause is thus before us, no question is to be considered, except it be necessarily and clearly presented by the exceptions. One point, upon which the counsel for the defendant has, with much apparent confidence, addressed to us an argument, we think is not open to our consideration. It is, that the property, for which the defendant was adjudged chargeable in the original suit, was not demanded of him within thirty days next after the rendition of judgment therein. This might have been pleaded in bar of the claim upon scire facias, or have been introduced by way of disclosure; without which the matter could not have been regularly before the Court. The attention of the Court below could not otherwise be called to the consideration of it. And no exceptions, cleaxly, would lie in such case, if it escaped the animadversion of the Court. No allusion appears to have been made to any such question, till introduced in argument in this Court. The Judge below, therefore, did not err in reference to it.

On the disclosure in the original action the defendant was adjudged to be chargeable, and in that adjudication he acquiesced ; and cannot, therefore, now be at liberty to complain of it. The facts then disclosed, however, would properly bo taken into consideration, with those subsequently introduced in the disclosure in this suit, in order to determine whether the defendant was properly chargeable, as well as in reference to the amount, if any, which the plaintiff was entitled to recover of him.

Upon the original disclosure it would seem, that the defendant here was held to be chargeable upon the ground, that ho had in his hands goods, effects or credits belonging to Nathan T. Smith. Yet nothing but real estate then appeared to have been in his hands, belonging to Nathan. Why such should have been the adjudication does not appear. The conveyance was probably deemed to have been designed to effectuate a fraud upon the creditors of the latter. There would seem to have been no other ground upon which, under that disclosure, the defendant could have been held chargeable. That such was the design of the conveyance might well be apprehended from the disclosure. We would not, however, be understood, considering the nature of the estate conveyed, as it then appeared to be, to intimate that we should have held the defendant chargeable. But the case, as finally presented by the additional disclosure in this process, taken in connection with the former, exhibits a much stronger ground for charging the defendant.

It is urged that no one can be charged as trustee in a writ of foreign attachment, unless there appears to be, as held by Mr. Justice Story, in Picquet v. Swan, 4 Mason, 460, “ a clear admission of goods, effects or credits, not disputed or controverted by the supposed trustees, before they can be truly said to have them in deposit or trustand that nothing of the kind appears in this case. As a general principle, the doctrine, as contended for, is correct, and was applicable in the case cited by the counsel for the defendant, of Rich v. Reed if al. &f Ir. The supposed trustee in that case was a deputy sheriff, and as such had attached certain goods. The attempt was to make him chargeable as the trustee of a supposed owner, when he had attached them as the property of another person. He did not and could not have been expected to state them to be otherwise than the supposed property of the individual, as whose he had attached them. To such a case the doctrine of Mr. Justice Story well applied.

The case at bar is peculiar. It is supposed to come within the provision of the Rev. Stat. c. 119, <§> 69. It is there enacted, that “ if any person, summoned as trustee, shall have in his possession any goods, effects or credits of the principal defendant, which he holds under a conveyance that is fraudulent and void, as to the creditors of the defendant, he may be adjudged a trustee on account of such goods, effects or credits.” This is a new statutory provision. It clearly contemplates, that the Courts shall decide upon examination of a disclosure, made by a person attempted to be charged in a process of foreign attachment, for any goods, effects or credits, conveyed to him by the principal defendant, whether they were or were not so conveyed in contravention of the provisions of the statute of the 13th of Elizabeth, c. 5. If they were, the conveyance, so far as creditors are concerned, is to be held null and void. This determination must be made- by Courts, doubtless, as if sitting in equity. The denial of the trustee of any fraudulent design must be allowed the force it would have in an answer to a bill in equity, charging him with the fraud. In either case, if the facts disclosed show the denial to be untrue, he must bo rendered chargeable. In such case the doctrine, as Said down by Mr. Justice Story, would be inapplicable.

This case presents somewhat of an anomaly. The Judge in the Court below has not indicated the particular grounds, upon which he considered the defendant chargeable. It is manifest that be must have been satisfied, that the matters of fact were otherwise than the defendant, by his disclosure, would have them understood to be; and, indeed, it would seem that he must have ascertained, that they were such as would bring the case within tire purview of the section of the statute before cited. If so, the ascertainment of the matters of fact, being within his province, and not open to exceptions, the law, as applicable thereto, could not be otherwise than correctly decided ; if there were goods, effects or credits embraced in the conveyance from Nathan to the defendant; and such by the last disclosure it appears there were, to an amount greater than was sufficient to pay the plaintiff’s demand. It is impossible, therefore, for us to perceive that the Court below erred in matter of law, without which exceptions could not be sustained.

But, if it were competent for us to go into a consideration of the matters of fact, it would be very difficult for us to come to a conclusion, that they were otherwise than we have supposed they were found to be in that Court. Nathan and the defendant were brothers, between whom a confidence may be supposed to have existed. The defendant was only between twenty-four and twenty-five years of age; and manifestly without property, other than he had been enabled to accumulate, after arriving to the age of twenty-one years, from his earnings as a laborer hired by the year on a farm, and in brick making, which he pretends had amounted to $425, clear of expenses. His brother Nathan, it is evident, was much embarrassed. Thus situated, he says, in his first disclosures, he purchased real estate of Nathan, and paid him twenty-five hundred dollars for it, in his claim against him for services, and in four notes he held against him; three of them for five hundred dollars each, which he had purchased of his brother Abram, in December or January next previous, bearing date, he thinks, about 1830. If so dated at the time he purchased them, and when he delivered them up to Nathan, if on interest, they would have amounted to nearly twenty-five hundred dollars. These notes, he says, he purchased of his brother Abram, for $1250, for which he gave him his note. He says further, that, though these notes, of so large an amount, and of so long standing, had been in the hands of his brothers Abram and Joseph, yet, that he never heard of them till he purchased them as before stated. He says further, that he never consulted Nathan about the purchase of the estate before the day when the conveyance was made. And it appears in his final disclosure, that the consideration of twenty-five hundred dollars, paid by him, instead of its being all for real estate, was in part for two notes, amounting to a little short of two hundred dollars, secured by mortgage, which Nathan transferred to him. These circumstances present a case so unlike any thing that would ordinarily occur in a bona fide transaction, that, to say the least of it, should excite strong suspicions of fraud. And when, such is the case, if the party implicated be in fact innocent, and has the means of making his innocence appear quite within his power, and does not do it, it is but reasonable, that the conclusion should be against him. Now, had not the defendant the means of proving the transaction to have been free from any taint of fraud, if such were its character ?

The statute before cited, “§>79, provides, that on the re-examination of any trustee on scire facias, “ he may prove any matter proper for his defence.” The defendant could have examined his three brothers, who were participators in the matters connected with his defence, who, it must be believed, could have given evidence as to évery fact having reference to the alleged purchase. Not having done so, if it had been within our province to ascertain the facts, we do not perceive any good reason why we should not have come to a conclusion similar to that to which, we must suppose, the Judge in the Court below had arrived.

Exceptions overruled — Judgment of the Court

below affirmed with additional interest and costs.