Townsley v. Barber

The opinion of the court was delivered, at the circuit session in September, by Bennett, J. It seems that at the April Term of the county . court, 1850, the plaintiffs recovered judgment against Isaac B. Barber, for some two hundred dollars, for goods sold and delivered to said Barber, and that for the purpose of securing the judgment, which might be recovered, certain property had been attached and sold on the mesne process as the property of Barber; and Barber had commenced his suit against the officer who' attached the property, claiming that the property was held by him as a trustee, and was not his private property; and, under this state of facts, this bill is brought for the purpose of having the suit against the officer enjoined, and that, if the trust shall be established, that Barber be decreed to pay the orators’ debt out of the trust property. The bill, however, seems to have been drawn with a double aspect, and ■ in the first instance it charges that Barber was not trustee, as he pretends, in his pleading in the suit against the officer, and seeks a discovery. It is very clear that the bill cannot be sustained on this latter ground, and it is sufficient to say that the answer denies that the propei’ty was his, but sets up the trust, and is responsive to the bill, — and the answer is not overcome by opposing testimony. It is, of course, of no use to inquire whether, if it had turned out that the property was the private property of Barber, chancery would have taken jurisdiction, or left the orators to have made their case out at law. It is claimed by the orators that if the defendant, Barber, is the trustee of the property, still they are entitled to relief, in equitys and this is the principal question in the case. But it is difficult to [420] see upon what ground they can claim an equitable lien upon this property. The bill charges, and the case shows, that the goods were sold and delivered to the defendant, Barber, upon his individual credit, and in the ordinary way, for the use of himself and family. It is not charged in the bill, nor pretended by the evidence, that these goods were intended to be delivered upon the credit of the trust fund, and the presumption is, that Barber bought them to enable him to perform the natural duty, which the law imposed upon him, to support his wife and children. The trust was a fact of general notoriety, and is disclosed upon the face of the deeds, which were upon record; and the answer of Barber states that he believes that the orators had personal knowledge of the trust. At all events, we think the orators were chargeable with notice. There is no evidence to show fraud in Barber, and the orators being. chargeable with notice of the trust, and having given the credit to the trustee, and not to the fund, there can be no privity, not even in equity, between the orators and the trust funds. Though it might be held that the trustee might be entitled, in equity, to have the trust funds applied to the support of the eestuique trusts, on tlie ground of his inability to support them, yet it by no means follows that the present orators could be substituted to the same right. The orators having parted with their goods upon the sole credit of the trustee, and being chargeable with a notice of the trust, come into court with an ill grace with an attempt to follow the trust funds into the hands of the beneficiaries. There is no good ground for treating them as debtors for the property, either in law or in equity. The decree of the chancellor should he affirmed, with costs.