Wright v. Bosworth

Richardson, C. J,, delivered the opinion of the court,* It is clear, that real estate is neither goods, money, chattels, rights, or credits, within the meaning of the statute regulating foreign attachments. 9 Pick. 562; 6 do. 474; 4 do. 57; 5 Mass. R. 390. But a credit may arise out of real estate, for which a trustee may be charged. 9 Pick. 562 ; 11 do. 101. Whenever the trustee becomes indebted to the principal by reason of the land in any way, such debt is a credit within the meaning of the statute. The question then is, whether Bosworth can be considered as indebted to Ford by reason of the land, so that he can now be charged for the debt in this suit ? In order to settle this question, it is necessary to enquire how Ford stood in relation to the $755 with which the mortgage was discharged, and how he now stands in relation to the land. The land belonged to the wife before it was mortgaged to Parkhurst, and Ford had at most only an estate for his own life. The land was conveyed to Parkhurst to secure a debt of Ford, which exceeded the value of any interest he had in the land. It is manifest, from the facts stated, that the Parkers had no intention to aid Ford in paying his debts, unless in so doing they could aid Mrs. Ford, their sister. It is also manifest, that they were willing to redeem the land, if Mrs. Ford could have the benefit of it. [594] The mode adopted to give her the benefit of a discharge of the mortgage was this ; Bosworth was to pay Parkhurst the mortgage money — Parkhurst was to convey the land to Ford and wife, and they were to convey to Bosworth absolutely — and Bosworth was to be reimbursed by Mrs. Ford’s brothers. Now, when all this was done, it is very manifest that Bosworth was seized of the land in trust for the separate use of the wife. And no wrong has been done to any creditor of Ford. All his interest in it has gone to pay his debt. The money advanced by the Parkers was intended for the separate use of Mrs. Ford, and she is in law entitled to the use of it. 5 N. H. R. 178; 3 do. 147; 10 Pick. 261. Ford has, then, no interest in the land, either legal or equitable, nor is there any debt due to Ford from Bosworth by reason of the land. Trustee discharged. Footnotes [*] Parker, J., having been of counsel did not sit.