Lord v. Collins , 79 Me. 227 ( 1887 )

Peters, C. J.

No view that can be taken of this case, on its. merits, makes the bill maintainable.

It is professedly a bill in the nature of an equitable trustee process, brought under R. S., c. 77, § 6, Art. 10. It has been decided that, in such a proceeding, there must be some third party summoned in — an equitable trustee. If it were not for this necessity, creditors might too much embarrass debtors, before obtaining execution against them, against the policy of the law. Donnell v. Railroad, 73 Maine, 567.

In this case there is no third party,— no equitable trustee. And from the facts alleged, we do not see how there can be any.

If the clerk were made such party, evidently he could not be holden. He has been acting merely as the hand of the court, and not for himself. He should not be subjected to the risk and expense of a litigation. Nor does it follow that he would be holden even if acting in an individual capacity merely. We have judicial notice, from another case^* before us, that a person other than the respondent claims to be a mortgage-owner of the animals which were sold. Even- if the respondent’s possession of the property might have invested him with authority to create a lien on the animals for their keeping, that lien cannot subsist upon the funds in question. Lord v. Collins, 76 Maine, 443.

It is impossible to make the court itself a party by its being an official depositary of the fund. The statute relied on as furnishing a remedy, cannot possibly accomplish such a thing— and was never intended to.

The result of the matter simply is, that the court has in'its official possession an amount of money which can be surrendered only when the court is satisfied upon proper process, affecting proper parties, who the true owner may be. Upon no facts indicated in the case can this complainant obtain it. The complainant probably missed his own interests in procuring a sale of the property before its full value was absorbed by the lien ; or, in selling more of it than was necessary to protect himself at the time of the sale — more in value than the amount of his lien.

Exceptions overruled.

Walton, Danforth, Emery, Foster and Haskell, JJ., concurred.

* Collins v. Blake, ante page 218.