William H. Mann & others vs. Samuel Huston & trustee.
H. assigned to D., in trust for creditors, certain goods in the store of H. previously mortgaged, and then in the custody of an officer under an attachment, and also goods and proceeds of goods in the hands of K., and some debts due H.: D. accepted the trust went to the store, gave notice to the officer of the assignment, said that he took posses sion of the goods, and did take the account books: After the service of a trustee process on D. as trustee of H., the officer sold the goods in the store, and paid over a surplus to D., and D. received from K. some money, and some goods, which he sold. Held, that the interest of H. in the goods in the store, and in the goods in the possession of K., passed to D., and that he was chargeable therefor, or for the proceeds thereof, in this process; but that he was not chargeable for the money received from K.
Otis H. Dana, summoned as trastee of the principal defendant, in his answers disclosed the following facts: The defendant, an inhabitant of the State of Maine, on the 9th of December 1851, at Sanford in that state, and pursuant to the laws thereof, by deed assigned all his property to said Dana, in trust to dispose of the same, and divide the proceeds among such of the creditors of the assignor as should become parties to the assignment, in proportion to their respective debts. The only property conveyed by this assignment was the defendant’s interest in a stock of goods in a store on Washington Street in Boston, some goods and proceeds of goods consigned to one Kimball, and some outstanding debts. Said stock was then subject to' two mortgages to Henry Lyman, and was in the possession of a deputy sheriff, under an attachment made at the suit of another creditor of Huston; and Lyman had given the officer notice of his mortgages, and demanded payment thereof; and the attaching creditor paid him. The stock of goods was afterwards duly sold at auction by the officer, with the consent in writing of the debtor, the trustee, and the attaching creditor; and the residue of the proceeds, amounting to $432, after paying to the attaching creditor his debt, and the amount paid by him to discharge the mortgages, were paid to the trustee as assignee of Huston.
The trustee never took possession of the stock of goods. Immediately after executing the assignment, he went to the store to take possession thereof, and gave the officer notice of the assignment, and said, in substance, that he took possession of *251the goods, and he did take possession of the account books; but he did not then, or at any other time, obtain possession of the goods. He found one of the plaintiffs at the store, and told him that the property, if there was any, was conveyed to him. The writ was served on the trustee on the same day on which he executed the assignment, and immediately after he had been to the store. No creditor of Huston had then executed the assignment. And the trustee had not then received any moneys for the outstanding debts, nor had any promises made to him by the debtors, nor given any notice to them; nor had any change been made in regard to the debts.
• Kimball was a pedler, to whom Huston had consigned goods for sale, but on what terms, or how Kimball received his compensation, the trustee did not know; nor did he know where Kimball resided, or where he was when the assignment was made. The goods in Kimball’s hands were sent by him to the trustee about three weeks after the assignment, and were sold by the trustee for $150; and Kimball afterwards paid the trustee $20 in cash.
O. H. P. Green, for the plaintiffs.
Under the circumstances disclosed in the trustee’s answer, the goods of the defendant in his hands are held by this process, although it might not have been physically impossible to have attached them. Burlingame v. Bell, 16 Mass. 318. Hastings v. Baldwin, 17 Mass. 537. Swett v. Brown, 5 Pick. 180. The trustee, having received and accepted an assignment of the defendant’s property, and having given notice thereof to the officer who had attached the goods in the store, saying that he took possession of the goods, and taking away the books of account, without objection by the officer, acquired the constructive, if not the actual possession of the goods attached, and could have turned them out on execution. Delivery of part of a lot of goods is a delivery of the whole. Parks v. Hall, 2 Pick. 212. And a symbolical delivery is sufficient where that only is possible. Whitaker v. Sumner, 20 Pick. 405. Gardner v. Howland, 2 Pick. 599. Delivery of a bill of sale of property held by an attachment passes the property, and the constructive possession, so that the vendee may *252replevy the goods when the attachment is released. Whipple v. Thayer 16 Pick. 25. Arnold v. Brown, 24 Pick. 95. Where goods are kept on the debtor’s own premises he has a qualified possession; and his actual delivery, without objection by the officer, vests the property in the vendee, subject to the attachment. Fettyplace v. Dutch, 13 Pick. 388. And such possession continues in the vendee. Holly v. Huggeford, 8 Pick. 73. If goods are within the trustee’s control, so that he can turn them out on execution, he shall be charged. Andrews v. Ludlow, 5 Pick. 31. The trustee had, at least, a constructive possession, which is sufficient to hold him as trustee. Arnold v. Elwell, 13 Maine, 261. Gibson v. Stevens, 8 How. 384. Kimball was a mere servant of Huston, and, after the assignment, of the trustee; his possession was the possession of his master; and the trustee had therefore such an actual possession of the goods and money in Kimball’s hands, as to make him chargeable for them. Ward v. Lamson, 6 Pick. 358.
A. H. Fiske, for the trustee.
If no property passed to the trustee by the assignment, he cannot be charged. His receipt of property, subsequent to the service of the writ, did not make him liable. Meacham v. McCorbitt, 2 Met. 352. Smith v. Stearns, 19 Pick. 20. If the property did pass to the trustee, he is not liable. The plaintiff might have attached the goods, subject to existing liens, and obtained the proceeds; omitting to do this, he acquired no lien. The trustee is not chargeable for the stock of goods, because he had not the actual possession. A constructive possession is not sufficient. Adams v. Ludlow, 5 Pick. 28. In Arnold v. Elwell, 13 Maine, 261, cited by the plaintiffs, there was no lien existing at the time of the assignment. This trustee had no goods in his possession, capable of being surrendered on execution. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 439. This is necessary. Allen v. Hall, 5 Met. 263. Grant v. Shaw, 16 Mass. 341. Willard v. Sheafe, 4 Mass. 235. Rev. Sts. c. 109, §§ 22, 23. The trustee cannot be charged for the goods and money in the hands of Kimball; for his claim against Kimball was only a chose in action, a right to call upon him to account; and it was contingent whether he would ever *253receive any thing. Meacham v. McCorbitt, 2 Met. 352. Tucker Clisby, 12 Pick. 22. Dickinson v. Strong, 4 Pick. 57. Dwight v. Bank of Michigan, 10 Met. 58. The subsequent receipt of the goods does not alter the case
Dewey, J.
The question as to the liability of Otis H. Dana, as trustee of Huston, must depend upon the effect to be given to the assignment made to Dana of the stock of goods in the store in Boston, and of the goods placed in the hands of Kimball to sell, taken in connection with the acts and declarations of Dana, in reference to the acceptance of the assignment, and giving notice thereof to other parties having prior liens on the goods, and thus effecting a symbolical delivery of the same as between Huston and himself.
The property in the store was subject to a mortgage, and also to an attachment. But neither of these liens was of a character to defeat a transfer of the interest of the debtor in the goods. A mortgage, not foreclosed, clearly leaves a right in equity in the mortgagor, which he may transfer. An attachment also leaves the general property in the debtor, and, as has been repeatedly decided, he may make a valid sale of his interest therein, subject of course to the attachment. Denny v. Willard, 11 Pick. 519. Whipple v. Thayer, 16 Pick. 25. Arnold v Brown, 24 Pick. 95.
In such cases, no actual delivery is required, but a symbolical delivery is sufficient. The facts stated in the trustee’s answers show sufficient to have been done by the assignee of the interest of Huston, by way of notice, and taking all the possession that could be acquired of property held by an officer under an attachment against the assignor. The case of Whipple v. Thayer, above cited, is an authority to this point.
This assignment was therefore effectual, as between the parties, to pass the property of Huston, subject to the two liens. But being an assignment of a character contrary to the spirit of Sts. 1836, c. 238, and 1838, c. 163, it fails to be valid and effectual to enable the assignee to hold the property for the particular distribution provided in the assignment, and subjects him to a trustee process, leaving his eventual liability to depend upon *254the fact whether there is a surplus after the payment of the debts secured by mortgage and by attachment; and this trustee process must of course, like other attachments, be liable to be defeated by proceedings against the debtor under the insolvent law.
It is no valid objection, that it was not physically impossible to have attached the specific goods, which were the subject of the assignment, or that the possession and interest of the trustee, at the time of the service of the trustee process on him, was a qualified one, and liable to be defeated by a foreclosure of the mortgage, or by a levy of execution by the attaching creditor. Parker v. Kinsman, 8 Mass. 486. Burlingame v. Bell, 16 Mass. 318. Swell v. Brown, 5 Pick. 180.
The goods in Kimball’s possession passed to the trustee by the assignment from Huston, made before the service of this process, and having subsequently actually come into the possession of the trustee by virtue of such assignment, and having been sold by him under it, he is now to be charged with them.
As to the money received from Kimball, a different rule should apply, and the trustee is not to be charged. Trustee charged.