Jamison v. Chesnut

Mason, J., delivered the opinion of this court. We do not consider that there is any question of jurisdiction involved in this case. That a court of equity has power to pronounce the deed in question to be void upon the ground of fraud, whether under the statute of Elizabeth or under our insolvent system, there can be no doubt; and this was the main, if not the exclusive, ground, upon which the jurisdiction of the court of equity was invoked in the present case. The objections taken by the appellant to the proceeding are, want of proper parties and error in directing the sale of the property in a mode different from that designated by the insolvent laws. ³⁹ The material facts of the case are simply these: After the application of the appellant for the benefit of the insolvent laws, and before this proceeding was instituted, the trustee of the insolvent died aud no successor has been appointed in his stead, in pursuance of the act of 1805, ch. 110, sec. 4.

In this state of the case, the complainants filed their bill to vacate the appellant’s deed, executed prior to his application aforesaid, upon the ground of its being in fraud of creditors. The appellant now contends, that before this proceeding could be regularly instituted, it was the duty of the complainants, or some other interested party, to have applied to the law side of the circuit court for the appointment of a new trustee, who should thereupon have been made a party to this equity proceeding. This position is undoubtedly correct. The theory of our insolvent system regards the trustee as the mutual representative of the rights and interests of both the debtor and his creditors, and any proceeding like the present,