Lyman v. Tarbell

The opinion of the court was delivered by Bennett, J. The only question raised in the case is in regard to the liability of Taft, as trustee. It need hardly be remarked, that this court, in trustee suits, as in others, simply sits as a court of errors, and not to settle facts. They must all be settled in the court below, and it is only our business to settle the law upon the facts found below. In the county court the trustee was made chargeable for the amount due on a note of three hundred dollars, dated the 12th day of December, 1854, payable on demand with interest. This note was given by Taft to Tarbell, payable to him or bearer. The case shows that this note was given to Tarbell upon a full and valuable consideration ; that this note was transferred or placed in the hands of one Jennings, and paid to him in June, 1855, but it did not appear that Jennings paid any consideration for the note, and the commissioner found it was still the property of Tarbell, and that it was placed in the hands of Jennings to avoid the trustee process. It is stated in the case that the trustee disclosed that he was notified by Jennings one or two days before the trustee process was served upon him, that he (Jennings) held the note. We apprehend, upon the facts found, Taft should be adjudged trustee for the note. If he would avoid the trustee process, the burthen of proof is upon him, and he must show the transfer Iona fide and upon valuable consideration. This is fully shown in [467] the cases cited by the counsel. It is not enough to show a formal transfer. Taft was fully notified of the plaintiff’s claim when served with the trustee process, and after this lie paid the note to Jennings at his own peril. Besides, it seems Taft was willing to lend himself to aid Tarbell in keeping his effects out of the hands of his creditors. The commissioner finds 'that the notes that were taken from Bixby by Taft for the property sold to him, which belonged to Taft and Tarbell together were taken to Taft to prevent Tarbell’s creditors from trusteeing Bixby, and that the three hundred note was given by Taft to Tarbell to settle up Tarbell’s claims on the Bixby notes. In regard to the decision of the county court in not charging the trustee beyond the amount of the note the plaintiff did not except, and of course no question on that part of the case is before us. The result is,, the judgment against the principal debtor is affirmed, pro forma, without costs, and as to the trustee, it is affirmed with costs.