Cockey v. Leister

Tuck, J., delivered the opinion of this court. The appellant was appointed trustee by a deed dated the 15th of July 1854, in which Levi Leister, the plaintiff, and Nicholas Leister were parties grantors, with the other heirs at law of Abraham Leister, for the purpose of selling his real estate, for distribution, after paying the expenses of the trust, and the balance of his debts not satisfied by the personal estate; the deed providing that the distribution should be made “under the direction of the circuit court, all points of dispute as to ¹²⁸ advancement, or any other matter that may arise in the premises, to be adjusted by said court.” The appellant accepted the trust, filed his bond in the clerk’s office, under the act of Assembly, and made sale of the property in September of that year, and in February 1855. On the 18th of September 1855, the appellant filed a petition on the equity side of the circuit court, setting forth his proceedings under the deed, and asking the court to distribute the proceeds of sale, but it does not appear that the fund was ever brought into court. An order was passed referring the petition to the auditor, and a distribution was afterwards made, by which Nicholas Leister was allowed <$520.05.

This account was ratified nisi, but it does not appear to have been finally confirmed by the court. On the day designated for the final ratification, the trustee filed a petition craving allowance for certain expenses, which appears to have been the last proceeding in the cause; the order endorsed on this petition, not having been signed by the judge, we deem of no effect. Meanwhile, however, between the date of the deed and the filing of the trustee’s original petition, to wit: on the 13th of November 1854, the appellee, a creditor of Nicholas Leister, a non-resident, sued out an attachment on warrant, and laid it in the trustee’s hands, to bind the debtor’s interest in the proceeds of sale. The case was tried on the plea of nulla bona, and the verdict having been rendered against the garnishee, he appealed. ' At the trial, the plaintiff relied upon the facts substantially stated above, as shown by the entire proceedings on the equity side of .the court, and asked the court to instruct the jury that whatever funds of the defendant, Nicholas Leister, the jury shall find, from the evidence in the cause, are in the hands of the garnishee, are subject to the attachment in this case,” which prayer was granted.

The garnishee offered two prayers, which were refused, to the effect, first, that the plaintiff was not entitled to recover, because he had adduced no sufficient evidence that any certain sum of money was in the hands of the garnishee, subject to the attachment; and, secondly, because the trust.created b.y the deed remained unsettled, and no action ¹²⁹ at law could be maintained until a sum certain was ascertained to be in his hands, due to the defendant, by a final settlement, of the trust. The appellant is not in the attitude of a trustee in equity, appointed by a decree to make sale of property^, and accpunt with the court for the proceeds. In such a case an attachment will not lie to affect the trust funds in his hands. It was so adjudged as to receivers in the case of Farmers Bank of Del., vs. Beaston, 7 G. & J., 421.

The reason of the doctrine there announced, applies with equal force to trustees in equity, and to funds of which they may have charge, and it was so held by the late Chancellor, in Bentley vs. Shrieve, 4 Md. Ch. Dec., 412. Property or funds so situated, are under the control of the court, and may be withdrawn at any time from the trustee’s hands, in which event he could not respond to a judgment of condemnation, except out of his own estate, which would be manifestly unjust; and to allow one court to interfere in this manner with funds under the dominipn of another, might not only produce confusion in settling the trust, but also lead to conflict of jurisdiction. Besides, a trustee, like a receiver, is appointed on behalf of all the parties, and if loss occurs, without his default, the estate must bear it.

Elliott vs. The U. S. Ins. Co., 7 Gill, 320. And it might happen that the judgment of condemnation would exceed the amount for which, on a statement of his accounts, the trustee would be liable to the defendant in the attachment suit. We do not wish to be understood as applying this rule to a trustee in equity, where the trust fund has been distributed by the auditor, and his account finally ratified by an order or decree directing the trustee, with the funds in his hands, and not brought into court, to apply the sqme accordingly.

See the Act of 1831, ch. 321. This, tqo, is a conventional trust, to which the plaintiff and defendant were both parties, and which the appellant accepted on the terms mentioned in the deed; that is, that the fund should be distributed under the direction of a court of competent jurisdiction, by which not only the rights of the parties could be ascertained, but ¿.he trustee \yould Ije protected qgainst ¹³⁰ the parties themselves. We gather from the deed that there were some matters