Heywood v. Brooks , 47 N.H. 231 ( 1866 )

Bartlett, J.

It is immaterial here whether the conveyance from Eliza Brooks and her husband was fraudulent as to his creditors or not, for the plaintiff does not attempt to avoid that conveyance, and he cannot here, for the purpose of charging the trustee on account of the land, deny that the title passed to the trustee by it; Pittsfield Bank v. Clough, 43 N. H. 187 ; and the trustee cannot be charged for the land itself; Wright v. Bosworth, 7 N. H. 593; and there was no evidence of any trust for the principal defendant, except in the mere obligation of the trustee to support him and his wife, which the latter had fulfilled up to the time of the disclosure, so that, as against the principal defendant, and this plaintiff, a creditor who has not avoided the conveyance, the trustee had the right to retain to his own use the income he had received from the farm. Jones v. Bryant, 13 N. H. 53.

The trustee could not be charged by reason of the statement in his disclosure that he had received certain personal property from the principal defendant, for the same disclosure states that the trustee had, according to the arrangement under which he received it, paid debts of the principal defendant to an amount equal to its value, and, indeed, greater, and the statements of the disclosure are in no way controverted or impeached, and the actual good faith of this as well as of the other transactions is not questioned.

The disclosure states that, between 1853 and its date, the principal defendant "had done some work on the farm,” without showing what, or under what circumstances or arrangement, or when with reference to the service of the process. Rev. Stat. ch. 208, see. 9; Laws 1861, ch. 2538. As the principal defendant was the father of the trustee, and was then with his wife being supported by the trustee upon the farm, the rule, "that where the relation of parent and child is shown to exist, the law will not presume any other,” applies, and to establish the relation of debtor and creditor between them at any given time, there must be evidence that the parties understood the latter relation to subsist between them at the time, and acted with reference to it; Munger v. Munger, 33 N. H. 583 ; Dickinson v. Dickinson, 43 N. H. 649 ; and no such evidence was offered. It does not appear that the wife of the principal defendant performed any labor for the trustee, and if she did, aside from the objection just stated in the case of her husband, the trustee could not undpr our statute be charged for it. Rev. Stat. ch. 208, sec. 9 ; Laws 1861, ch. 2358. Upon this view of the case there was no evidence upon which the jury could have found the trustee chargeable, and it becomes unnecessary to examine the correctness of the ruling of the court in relation to the trustee’s right of set-oif in case he had been chargeable.

The opinion of the trustee as to the value of his parents’ services, and his offer to his sister were incompetent evidence, and neither the proceedings of the probate court, the sale of the principal defendant’s interest in the land, nor the mortgage of chattels could be proved by the mere statement of the disclosure, if objected to, and besides several of these matters were stated as mere hearsay ; that part of the disclosure was therefore properly excluded from the evidence, (Currier v. Taylor, 19 N. H. 191,) and as part of the disclosure was rejected as incompetent. Upon a familiar rule of practice, the document itself could not go to the jury.

By section 28 ch. 208 Rev. Stat., the trustee was entitled to his costs up to the filing of the motion for jury trial, "unless the court shall restrict the same,” and by the sixty-second rule of court it is provided that trustees shall not be allowed costs of attendance till the plaintiff’s attorney is notified that the trasteéis in attendance and ready to disclose, &c., the costs allowed were proper to be allowed under these provisions, and under the statute the court had the power to restrict the costs of the trustee. The facts stated do not bring the case within either section 33 or section 31 of ch. 208 of the Revised Statutes. The case is to be discharged.