#### Stephen Webb *versus*Willard Peele, Trustee.

Where one summoned on a trustee process disclosed in his answers, that the principal defendant had by deed assigned personal property to him to secure the payment of debts due to him and to other preferred creditors, and had at the same time made to them a deed of real estate for the same purpose, though absolute on the face of it and in which the consideration was expressed to be 7500 dollars paid to the grantor ; and that previous to the service of the trustee process the preferred creditors had notice of the deeds and assented to them j and further, that the personal property was of itself more than sufficient to pay the preferred debts : —• it was *held,*that the real estate passed by the deed ; that it should be applied, at its actual value, to the payment of the preferred debts, before resort was had to the personal estate 5 and that for the surplus of the personal estate, not required for the payment of the balance of those debts, the respondent was chargeable as trustee.

Scire facias. From the answers of Peele it appeared, that on August 14, 1826, James Silver was in failing eircuin*253stances by reason of the failure of Richard Wheatland, for whom he was liable as indorser, and that he was desirous of securing Peele against loss from his liabilities on account of Silver, and also of securing to J. Hodges, E. Appleton, J. Day and M. Day the payment of certain debts contracted by Silver on his own account and then unpaid, in preference to the debts of Wheatland for which Silver was liable as indorser ; and that on the day above mentioned, Silver executed an instrument under seal conveying personal property, and also a deed of real estate, copies of which were annexed to Peele’s answers.

By the first instrument, Silver, m consideration of one dollar paid by Peele and as collateral security to him against loss on account of his indorsements and suretyship for Silver, assigns to Peele certain personal property on the following conditions, *viz. :*—out of the proceeds of the property, Peele is to retain, in the first place, sufficient to pay all promissory notes signed by Silver as principal and by Peele as indorser, guarantor or surety, and to pay Silver’s proportion of certain debts due from the owners of the ship Perseverance; he is next to retain sufficient to pay certain promissory notes given by Silver to Appleton, Hodges, J. Day and M. Day. and is to apply the residue *pro rata*to the payment of other securities where Silver is the promisor ; and if there is any residue after the foregoing appropriations, he is to apply the same *pro rata*in discharge of debts for which Silver is liable as indorser, guarantor or surety.

By the other instrument, Silver, “ in consideration of 7500 dollars paid him ” by Peele, Hodges, J. Day, Appleton and M. Day, conveys to them absolutely, and with warranty, certainreal estate, to be held by them in fee in certain proportions.

It further appeared from the answers, that at the time of making these conveyances, Silver and Peele were ignoran -hat the personal or the real estate had not been attached by creditors of Silver ; that no money was paid at the time to Silver, as the consideration of the conveyances, but that the sole intent of them was to secure Peele against his liabilities for Silver, and to secure to Hodges, Appleton, J. Day and *254M. Day the payment of their respective demands against Silver ; and that the conveyances were notified to those persons and assented to by them before the service of the trustee process on Peele.

*April*2d, 1828, *in Suffolk.*

The answers contained likewise a statement of the amount of the liabilities and debts, to secure which the conveyances were made, and also of the property conveyed; from which it appeared that the personal property was sufficient to discharge these debts and liabilities. The value of the real estate was estimated at 4000 dollars only, and not 7500, the con sideration mentioned in the deed.

The debts and liabilities intended to be secured by the conveyances, together with the debts due to the plaintiff and other creditors who had caused the land to be attached and trustee writs to be served upon Peele, exceeded in amount the value of the whole property conveyed.

*Saltonstall*and *Cummins,*for the plaintiff,

did not deny that Peele had a right to apply so much of the property as should be necessary, to discharge the demands and liabilities of himself and the other creditors above named. The questions are, whether he is chargeable as trustee for the real estate ; and if so, at what value. If the deed was in law fraudulent and void as against creditors, then the land was open to the attachments which have been made upon it in tne ordinary way. But we contend that the land passed, and that Peele is to account for it as trustee. He probably intended to take a mortgage, but the deed is absolute. And the sum named as the consideration in the deed, is conclusive in regard to the value. Pie does not indeed state that this was not the true value at the time of the delivery of the deed, though when he makes his answers he estimates it at 4000 dollars only. *Baker*v. *Dewey,*1 Barn. & Cressw. 704 ; *Robinson*v. *M'Donnell, 2*Barn. & Ald. 134 ; *Powell*v. *Monson &c. Co.*3 Mason, 257 ; *Flint*v. Sheldon, 13 Mass. R. 443 ; *Storer*v. *Batson,*8 Mass. R. 431 ; *Goodwin*v. *Hubbard,*15 Mass. R. 218 ; 3 Stark. Ev. 1001.

*L. Shaw*and *B. Merrill, contra.*

The land passed by the deed, and it is to be accounted for at its actual value. In this way justice will be done to all parties. The two instruments conveying respectively the real and the personal *255property, constitute one transaction. The sole object was to secure debts ; which was a lawful purpose; and the circumstance that the property exceeds those debts, does not vitiate the transfer. *Thomas*v. *Goodwin,*12 Mass. R. 140 ; *Northampton Bank*v. *Whiting,*ibid. 110 ; *Harrison*v. *Phillips Academy,*ibid. 466 ; *Hastings*v. *Baldwin,*17 Mass. R. 552 The Court would rather marshal the assets, and intend that Peele received the land to be applied at its real value to his own demand. *Pierson*v. *Weller,*3 Mass. R. 564 ; *Russell*v. *Lewis & Tr.*15 Mass. R. 127 ; *Black*v. *Black,*4 Pick. 236. The consideration expressed in the deed is not conclusive as to the value of the land. *Wilkinson*v. *Scott,*17 Mass. R. 257 ; *Davenport*v. *Mason,*15 Mass. R. 85 ; *Rex*v. *Scammonden,*3 T. R. 474 ; *Straton*v. *Rastall,*2 T. R. 366 ; *Bowen*v. Bell, 20 Johns. R. 338 ; *Hamilton*v. *Ex’rs of M'Guire,*3 Serg. & Rawle, 355 ; *Weigley's Adm'rs*v. Weir, 7 Serg. & Rawle, 309 ; *O'Neale*v. *Lodge,*3 Har. & M‘Hen. 433. But if the deed is conclusive, then the plaintiff, claiming under Silver, is estopped by it to deny that the sum of 7500 dollars was not actually paid as the consideration.

*Nov. 8th.*

*Per Curiam.*

We are of opinion that the land passed by the deed, there being a valid consideration ; that the purpose being to pay debts, it passed in trust; and that it is to be accounted for at its actual value. But the deed being absolute, the land is to be applied to those debts before resort is had to the personal estate ; it must be considered as a payment *pro tanto.*If there shall afterward be a surplus of personal estate, Peele must be charged for it. This cannot be ascertained without first coming at the value of the real estate. Perhaps this may be determined by agreement, but if not, the respondent should be allowed an opportunty to sell. We consider the whole property as put inte his hands to be applied to the discharge of the debts and liabilities specified, and that he will be liable as trustee for the surplus.1

1

 But neither choses in action nor land assigned, are, in the hands of the assignee, goods, effects or credits of the assignor liable to the trustee process, even in case the assignee would be trustee after receiving money by means *256of the choses in action or as the proceeds of the sale of the land. *Gore*v. *Clisby,*8 Pick. 555. See also *Bissell*v. *Strong,*9 Pick. 562; *Tucker*v. *Clisby,*12 Pick. 22. So held, where the assignee had sold the land after the process had been served on him but before he had filed his answer. *Sanford*v. *Bliss,*12 Pick. 116. See *Fall River Iron Works*v. *Croade,*15 Pick. 16.

The court will not compel the assignee to apply first such land to the pay. ment of the creditors, parties to the assignment, in order to create a sur plus of the goods to which the trustee process may attach. *Tucker*v. *Clisby*12 Pick. 22; *Gore*v. *Clisby,*8 Pick. 555.