Seymour v. Cooper

The opinion of the court was delivered by Isham, J. A judgment in this case,' having been rendered against the principal debtor, the question now arises upon the liability of the trustee. The process was served upon the trustee on the 25th day of June, 1844, and from the disclosure it appears that at that time there were no goods, chattels, or estate in his hands, belonging to the principal debtor. If a disclosure had been made at that time, the trustee would have been entitled to a discharge. We learn from the report, however, that after the service of this writ, and before his disclosure, the trustee became the purchaser of real estate from the defendant; and in addition to the incumbrances .then resting upon the land, agreed to pay $125 00 in a horse and wagon, which, it is stated, was paid and delivered at the time of the execution of the deed, and also agreed to pay the further sum of $200 00 in money to David Cooper, the son of this defendant. It is insisted that a recovery cannot be had in this process, for this subsequent indebtedness of the trustee ; and that he cannot be made chargeable, unless at the time of the service of this process, some effects were in his hands liable to be attached as the proper [145] ty of the principal debtor. The 2d section of the Compiled Statutes, p. 256 provides, “ that every person, having any goods, effects, “ or credits, of the principal defendant in his hands or possession, “ or which shall come into his hands or possession after the service' “ of the writ, and before disclosure is made, may be summoned as “ trustee, &c.” If the question depended upon a construction of this section, it is- evident that its language is sufficiently broad and definite to charge the trustee, whether the effects came into his hands before or after the service of the writ. It is made a matter of positive legislation, that the plaintiff is entitled to judgment against the trustee, in either case, unless the operation of that section is otherwise controlled by some other provision of the statute. • It is claimed that such effect is produced by the 7th section of the same act. It is obvious, however, that that section simply provides that a person shall not be adjudged trustee, when, at the time of the service of the writ, the existence of the claim depends upon a contingency of such a character, as to render it uncertain whether a claim will ever arise. It pimply excepts claims of that character from the operation of the trustee process, without having any reference to the general liability of the trustee under the act. Whenever, therefore, a claim exists not subject to such contingency, it falls under the provision of the 2d section, and is subject to be attached by this process, whether it existed before, or arose after the service of the process. This has been the uniform construction of the act since its passage. The cases of Newell v. Ferris, 15 Vt. 135, and Spring v. Ayer, 23 Vt. 516, have settled the construction of the act, in allowing claims occurring subsequent to the service of the writ, where there was also an indebtedness at the time of the service; and the case of Hurlburt v. Hicks, 17 Vt. 193, sustains the construction, that where there was no indebtedness on the part of the trustees, when the writ was served, yet, if after the service, and before disclosure, goods, chattels, or effects came into their hands, belonging to the principal debtor, they were chargeable therefor, as trustees ; and this decision must be considered as conclusive in this case, and as settling the practical construction of the act. The case is then resolved into the inquiry, whether there were effects in the hands of this trustee, belonging to the principal debt- or, at any time after the service of the writ, and before dis [146] closure by the trustee. The plaintiff claims to recover the $125 00, which was paid towards the land in a horse and wagon. This property, it appears, was delivered at the time of the execution of 'the deed, and the title to which passed at the time of the conveyance of the land. This was, therefore, inore properly an exchange of property, rather than as creating effects in the hands of the trustee, for which he would be chargeable in this suit. In relation to that matter, therefore, we think the trustee is not chargeable. But we think he is chargeable for the $200 00, which was to be paid in money. In relation to that claim, it is distinctly stated, that there was no indebtedness from David to Asa Cooper, for which the money was to be paid to him; but on the contrary, it is stated, that the money was to be placed in his hand for the use and benefit of the principal debtor. It does not appear from the case, but that the money is still due from the trustee to the defendant, or that it has ever been paid to him or David Cooper. If so, it is effects in the hands of the trustee, belonging to the principal defendant; and his agreement to pay the same to David Cooper, will not discharge him from his liability as trustee. Camp v. Scott & Tr., 14 Vt. 387. Marsh v. Davis, 24 Vt. 366. Neither would he be discharged, if the money had been actually paid over, after the service of this process, as it would be a payment in his own wrong. The claim was subject to the attachment of this process, from the time it accrued. The result is, the judgment of the County Court is reversed, and the trustee is adjudged chargeable for the $200 00 specified in the report, with interest.