Bunker v. Tufts

Appleton, C. J.

This is an action under R. S., c. 113, § 47, for an alleged fraudulent conveyance of personal property by one Albert Williams, a debtor of tlie plaintiff to the defendant. The writ is dated Jan. 31, 1869.

It is admitted that the plaintiff, on 23d August, 1865, brought a suit against said Williams, and summoned the defendant, as trustee, by reason of the aforesaid conveyance. The defendant appeared and disclosed, and upon his disclosure was discharged, and recovered his costs.

By R. S. 1857, c. 86, § 63, “ If any alleged trustee has in his possession any goods, effects, or credits of the principal defendant, which he holds under a conveyance fraudulent and void as to the defendant’s creditors, he may be adjudged as trustee on account thereof, although the principal defendant could not have maintained an action therefor against him.”

The plaintiff in this suit was a plaintiff in the suit in which the defendant was summoned as the trustee of Williams. He is bound by the judgment rendered in that suit, equally, as he would be by one rendered in this. The validity or invalidity of the sale from Williams to this defendant was in issue between the plaintiff and the trustee in that suit precisely, as it is in this. The plaintiff failed in the contest between him and the trustee, and the judgment of the court was, that the sale was valid, and consequently that the alleged trustee must bo discharged; for if the court had regarded the sale as fraudulent, he must have been charged.

The record of the judgment, in the suit Bunker v. Williams, and Tufts trustee, is binding upon the parties in this suit. Glass v. Nichols, 35 Maine, 328. McLellan v. Longfellow, 32 Maine, 494.

If the defendant disclosed falsely when summoned as trustee, the statute affords the plaintiff an ample remedy. By § 77, “ If any person summoned as trustee, upon his examination willfully and knowingly answers falsely, he shall be deemed guilty of perjury •, and shall pay to the plaintiff in the suit so much of the judgment recovered against the principal as remains unsatisfied, with interest and costs to be recovered in an action on the case.” The plaintiff in this mode is allowed to impeach the judgment rendered in the trustee process.

As the judgment, discharging the defendant as trustee, is binding on the plaintiff, he being a party thereto, it becomes unnecessary to discuss the other questions arising in the case.

Plaintiff nonsuit.

Cutting, Kent, Dickerson, Barrows, and Tapley, JJ., concurred.