Wallace v. Investment Co. , 68 N.H. 188 ( 1894 )

The question to be determined is whether the insurance money in the hands of the trustee shall be held by the plaintiffs for the satisfaction of their claim against the defendants, or by the claimant for the benefit of the defendants' bondholders. It is a general rule that in the absence of fraud the attaching creditor has no greater rights against the trustee than the defendant would have in an action brought by him against the trustee; and as the trustee process is an equitable proceeding, the trustee can be charged for only such sum as the defendant could equitably recover against him. Leland v. Sabin, 27 N.H. 74; Forist v. Bellows, 59 N.H. 229; Carter v. Webster, 65 N.H. 17.

The defendants could not recover this money in a suit against the trustee, in the face of the condition upon which they purchased the property. They agreed to secure the balance of the purchase money then due by a deed of trust of the property. The deed of trust, given to Letcher in compliance with that condition, provided that the property should be held to secure the payment of the bonds and should be insured for the benefit of the trust, while the supplemental agreement, made after the buildings were burned, provided that the insurance money should be paid into the hands of the trustee, to be held "subject to the provisions and conditions" of the trust deed. These agreements would preclude a recovery in such an action. By these instruments, executed before the commencement of the plaintiffs' suit, the defendants placed this money beyond their control. It was pledged as security for the payment of the bonds given for the purchase money of the property, in accordance with the condition upon which the property was conveyed. In the light of these agreements and conveyances, the defendants have no legal right or equitable claim to this money as against Letcher, who claims it in behalf of the bondholders for whose benefit it was pledged. Nor have the plaintiffs any better claim than the defendants, us it was found the agreement was not fraudulent as to creditors.

The fact that part of the insurance money was not paid into the hands of the trustee until after the time of the service of the plaintiffs' writ upon him can make no difference. Before that time, the trust deed had been executed and delivered, and the supplemental agreement of the November 12, 1891, absolutely fixing the right of the bondholders to have this money held as security for the bonds, had been made.

The Virginia statutes do not change the result. The principal defendant is a Virginia corporation, having its domicile in that state. It is insolvent, and for more than two years has been in the hands of a receiver appointed by the United States Circuit Court for the Western District of Virginia. The claimant has been ordered by that court to collect this fund. As he is acting under the order of that court, the money, if recovered by him, will be subject to its order; and it will be for that court to determine whether the Forest company is entitled to the fund, or whether, under the laws of Virginia, it shall be held for the benefit of all the creditors.

Exceptions overruled.

SMITH and CLARK, JJ., did not sit: the others concurred.