State v. Annan

Earle, J. delivered the opinion of the Court. This suit was brought by a creditor on the bond of a trustee appointed by the Chancellor, to sell the reál estate of a deceased person for the payment of his debts. The statement agreed on .between the parties gives a full account of the proceedings of the trustee in Chancery, from the acceptance of his trust, to the confirmed report of his sale, and the Chancellor’s order of distribution of proceeds among the creditors. The action was instituted within a month after the order, and the complaint is that the plaintiff’s proportion of the avails of the gale was sought without giving to the defendant, any previous potice of the final proceedings of the Chancellor. We have given to this case a further consideration, and after .an examination of the authorities, we are inclined to think our first impressions of it were not correct. The trustee as to the suit is not in the situation of a common debtor, who knows his liability, and whose business it is to look to a compliance with his engagement; nor is his predicament like that of an executor pr administrator, who represents the deceased testator, or intestate, in all and each of his contracts, and to whom the creditors individually are to exhibit their claims for settlement. The creditors are known to the trustee but through the medium of the Court of Chancery, where they file their respective demands to be adjusted by the auditor, and where disputes among them are disposed of by the Chancellor, who finally determines what proportion of the sum of money reported, is to be paid to each of them. This proceeding as to the trustee, is res inter alios acta, and it is but reasonable that when it terminates he shall be notified of the result, before any steps are taken against him, either by attachment, or by action on his trustees bond, against [463] him, and his sureties. In the case of an order for distribution and payment, similar to this, to sustain the plaintiff’s suit, it appears to us therefore, that he ought to aver and prove a service of the order on the trustee, and a demand of payment of the sum specified therein; and that without this notice so averred in the proceedings, an action on the trustees bond cannot he maintained. Vid. 3 Johns. Cases, 53. The court mean to confine this decision to an order for distribution and payment by the Chancellor, and with this understanding the judgment of the court below is affirmed. JUDGMENT AEDTRMED.