#### Elijah M. Bissell *versus*Henry K. Strong and his Trustee, Joseph Merrick.

A grantee of land or of an equity of redemption conveyed to him by an absolute deed as security for a debt or liability, is not chargeable in a process of foreign attachment as the trustee of the grantor, although the value of the property conveyed shall exceed the amount of the debt or liability; unless he shall have received rents or profits or made sale of the land.

From the answers of Merrick it appeared, that he had become surety for'Strong to the Hampden bank, for about $500, and that D. B. Bush, in September 1829, as agent of Merrick, took of Strong an absolute deed to Merrick of certain real estate, in order to secure him against this liability. Bush informed Merrick that the deed was also to be held as security for Bush’s claims against Strong, amounting to $400. The real estate was at that time incumbered by mortgages and *573attachments. The deed was recorded on October 1st, 1829. The writ in this case was dated December 26th, 1829, and before it was served upon Merrick, Strong had paid the whole amount for which Merrick was liable, except about thirty dollars. No part of Bush’s claim had been paid by Merrick, nor did Merrick know whether any part of it had been satisfied by Strong. Before the conveyance to Merrick, Strong’s right in equity to redeem had been attached by A. Hayden, and Merrick took an assignment of Hayden’s execution, which was for about $ 50, but Merrick’s claim being secured by N. Willis, he relinquished his claim to the execution, and the equity of redemption was sold on the execution in April 1830, with his consent, and was purchased by Willis for $ 1700. Merrick understood, before the sale, that Willis was a creditor of Strong, and that he had attached the real estate in question. At the time when Merrick relinquished his claim to.the execution, some provision was made for Bush’s claim, by an agreement between Bush and others, but Merrick did not know the nature of the agreement.

*C. Jl. Dewey*and *Martin*

contended that Merrick could not be charged as trustee. No money has been received by him for the land, and the Court will not try the title to land in a process of foreign attachment. If Merrick pays over the value of the land as trustee, he may nevertheless lose the land itself at the suit of creditors who attached it before the service of the trustee process. *How*v. Field, 5 Mass. R. 390; *Russell v.*Lewis, 15 Mass. R. 127 ; *Dickinson*v. *Strong,*4 Pick. 58 ; *Boardman*v. *Roe,*13 Mass. R. 104; *Ripley*v. *Severance,*6 Pick. 477.

Nothing passed by the deed to Merrick, his liability as surety not being a sufficient consideration, as against creditors, for an absolute deed. *New England M. Ins. Co.*v. *Chandler,*16 Mass. R. 279.

If the deed was valid, Merrick had merely a right to call on the sheriff for the surplus money raised by the sale on execution ; so that nothing but a chose in action was conveyed to him ; which will not make him chargeable as trustee. *Perry*v. Coates, 9 Mass. R. 537.

*Hubbard*and *Briggs, contra.*

Mere inadequacy of consid*574eratión does not render void an absolute conveyance maae *bona fide,*as was the case in the present instance. Where the conveyance is fraudulent, a creditor should attach the land; but where it is *bona fide,*the remedy is by summoning the grantee, in the trustee process. If Merrick has contracted contradictory obligations, so that he may lose both the land, and the proceeds of it, it was his own fault. *Webb*v. *Peele,*7 Pick. 247 ; *Richards*v. *Allen,*8 Pick. 405 ; *Harris v. Sumner,*2 Pick. 138.

It appears that the land has been converted into money, and Merrick is chargeable for it. Willis must be considered as his agent. *Richards*v. *Allen,*8 Pick. 408.

Wilde J.

afterward drew up the opinion of the.Court. That the process of foreign attachment, or trustee process, does not extend to lands held by the trustee in trust, or as collateral security, or by a conveyance fraudulent against creditors, is very clear, we think, from the language of the statute and the current of the authorities. The words *goods and effects,*in their ordinary signification, designate personal property, and not real estate ; and in this sense they are manifestly used in the statute. In the fifth section, the court is directed to award execution, in case the trustee is not discharged, against the goods, effects and credits of the principal in the hands and possession of the trustee, and against the body, goods and estate of the principal; and in the prescribed form of the execution, the sheriff is directed to satisfy the creditor out of the *goods,*chattels, or *lands*of the principal in his own hands and possession, and of his *goods, effects*and *credits*in' the hands of the trustee. In the sixth section provision is made for *scire facias*against the trustee, upon his failing to *discover*and *expose*sufficient *goods, effects*and *credits*of the principal to satisfy the execution.

From these provisions it is apparent, that the statute was intended to operate on *credits,*and *personal property*only, and not on any interest in real estate, whether legal or equitable. And this construction of the statute is supported by all the cases cited. In no case has a trustee been charged on account of lands held in trust for the principal, or as security for a debt. No doubt credits may arise out of real estate thus held, as waj *575decided in the case of *Russell*v. Lewis, 15 Mass. R. 127. Thus a trustee may be charged for rents and profits received of lands held in trust, or as security for debt, or for the proceeds of the sale of the estate itself, if it is sold by the trustee for the benefit of the principal. But he is not chargeable for the' value of the land which he may hold in trust, or as security, although the value of the land may exceed the amount of the debt secured. And so it was decided in the case of *Dickinson*v. Strong, 4 Pick. 58. The case of *Ripley*v. Severance, 6 Pick. 474, is also an authority to the same point; and so is the case of *Webb*v. *Peele,*7 Pick. 247, [see 2d ed. 249, note 1,] although it has been relied on by the counsel for the plaintiff as an authority in his favor. That case turned on the question, whether the real estate was received in payment of the debt due to the trustee ; which would have been manifestly immaterial, if the trustee was chargeable for real estate held as security.1

Upon the authority of these cases, and the obvious construction of the statute, it is clear, we think, that the trustee is entitled to a discharge.

By his answers it appears, that when the plaintiff’s writ was served upon him, the debt due to him from the principal was not fully paid. The amount due is not material. The trustee had a right to retain his security so long as any part of the debt remained unpaid ; and he could not be made answerable for the surplus value of the land, for this would be to compel him to become a purchaser against his consent. If the debt had been fully paid, and a demand had been made for a re-conveyance, upon the trustee’s refusal to reconvey he might perhaps be held as debtor to the principal to the amount of the value of the land, provided he was bound by law to reconvey.As to this, however, we give no opinion. Nor is it necessary to discuss the question, whether the deed to the trustee is void as being fraudulent against creditors ; for however that question might be determined, the trustee could not be charged in this form of action.

*Trustee discharged.*

1

**See *Sanford*v. *Bliss,*12 Pick 116; *Fall River Iron Works*v. *Croade,*15 Pick. 16 ; *Tucker*v. *Clishy,*32 Pick. 22; *Gore*v. *Clisby,*8 Pick. 555; *Wright*f. Bosworth., 7 N. Hamp. R. 593; *Guild*v. Holbrook, 11 Pick. 101.