Samuel F. Dickinson versus H. Wright Strong, Principal, and John Leland Junior et al., Trustees.
L being summoned in foreign attachment as trustee of S, disclosed that as surety for S, he signed a note given to K as the consideration for land, and received of S sev eral negotiable notes made by third persons, with the proceeds of which he was to pay the note given to K, and took from K a deed of the land, giving to S a bond, that upon being exonerated from his liability to K, he would reconvey the land to C, in trust for the wife and children of S 5 and that all the notes assigned, except one, were collected and the money paid to K before the service of the writ, and the remaining note was collected afterwards. Held, that L was not chargeable as trustee of S, either in regard to any one of the notes or the land»
It appeared from the answer of Leland, that before the service of the writ, he had signed as surety a promissory note for 2031 dollars, given by Strong to E. Kimball as the consideration for certain land, and had received for his own security from Strong sundry promissory notes given to G *60Cutler and L. Boltwood and by them indorsed, and also a promissory note given to Cutler and the wife of Strong, payable to bearer, out of the proceeds of which it was expected that the note to Kimball would be paid; and that he had received likewise of Kimball a deed of the land, having at the same time given a bond to Strong to reconvey the same to Cutler, in trust for the wife and children of Strong, so soon as he should be exonerated from his liability as surety ; that the notes transferred to him, excepting one, had been paid and the sums received been indorsed on the note to Kimball, before the service of the writ; and that since the service of the writ, the remaining note had been paid and the money been sent to Kimball, with a request that he would retain the amount still due on his note and return the balance.
Sept. 26th.
Sept. 30th.
Bates and Dickinson, for the plaintiff,
cited Shuttleworth v. Noyes, 8 Mass. R. 229; Pierson v. Weller, 3 Mass. R. 564.
E. H. Mills and Ashmun, contra.
Per Curiam.
It cannot be inferred from any facts disclosed, that Leland is in any way indebted to Strong so as to malee him liable as Ms trustee. The payments to Kim-ball were made in pursuance of an original understanding, which appears to have been fair and legal. In regard to the note which remained last in the hands of Leland, as it was not paid when the summons was .served,. he cannot be chargeable with it, as it was the note of a third person, which, if held by him in trust, cannot, according to cases decided, make him liable. Neither could the deed of the real estate render him liable, that being held by him as security for the same undertaking. If in giving the obligation to convey the land in trust for the wife and children of Strong there is any thing fraudulent as against creditors, the question must be settled in an action for the land.
Trustees discharged.