Benjamin Bussey vs. Horatio N. Page, Adm'r., 13 Me. 459

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. — The claim of the plaintiff to the relief sought by the bill, depends upon the question, whether the defendant’s intestate held the notes of Bryant specifically in trust for the plaintiff, and whether the same trust attaches to the notes in the hands of the defendant.

For if the plaintiff has no ground of preference over other creditors, arising from such trust, if it exists, his only remedy is by filing his claims before the commissioners, appointed to receive and examine such demands, as might be presented against the estate of the intestate. It is insisted, that the trust results from a fraud, practised by the intestate upon the plaintiff. Without deciding, how far such a charge can be open to inquiry since his decease, which is at least questionable, we arc not satisfied that it results from the facts set forth in tho bill, taking thorn to bo true.

The plaintiff sold and conveyed the land, from which this suit has arisen, taking as security for the greater part of tho purchase money, the notes of the intestate, with a mortgage on the land. The deeds were delivered, and took effect; as is conceded by the counsel for the plaintiff. The intestate was dissatisfied with the survey, and proposed a new one, and that the deeds should in the mean time remain unrecorded, to which the plaintiff acceded.

It is not charged, that this proposition was made by the intestate in bad faith, as a pretence, upon which to keep the mortgage from being recorded, that he might thereby pass a title to Bryant, clear of that incum-brance. For any thing which appears, the intestate was in truth desirous of anew survey; and hoped to derive an advantage from it. It is not charged that he recorded his deed, in violation of his own proposition. If any correction proved to be necessary upon a re-survey, he might intend that new deeds should be substituted, for those already made.

And if he conveyed in the mean time, any deed he might receive would enure to tho use of bis grantee, by way of estoppel. It appears by the bill, that lie did at the time apprize the plaintiff, that he had agreed to sell the land to Bryant, and he desired to know, and was informed, that Bryant’s notes, secured by a mortgage from him, would be acceptable to the plaintiff, instead of his own.

It is not charged, that the sale to Bryant was agreed to be suspended, or that it was not to be done, without the approbation and consent of the plaintiff, or that he requested or enjoined it upon the defendant, and not to convey without his knowledge. The contemplated exchange of securities, rested altogether in proposition. It is not charged, that the intestate agreed, that it should be done. Bryant was to be consulted ; and his consent was necessary to tho arrangement. The plaintiff was very confiding. He must have been aware that he hazarded his security, by delaying the registry of his mortgage deed.

He avers, that the intestate conveyed without his knowledge or consent. He might not have had a knowledge of the fact, at the time of the conveyance ; but he certainly knew that the intestate had agreed to make it. It does not appear, that the intestate had anything to gain, by defeating the plaintiff’s mortgage. He might reasonably expect in that event, to be more severely pressed for payment. The plaintiff sets forth no request or demand upon the intestate, to exchange the securities. For anything which appears, the intestate may have been at all times ready to make the exchange.

Bryant could have had no objection to it. To him, it must have been desirable; for in that case, when paid, the plaintiff’s incumbrance would be extinguished. If not done, he was exposed to that claim, which he escaped only, after the trouble, expense and hazard of a lawsuit. If the exchange had been made, Bryant would probably have had no objection to the giving of a mortgage, as collateral security. It does not appear, that he gave any to the intestate, and it may have been omitted, with a view to the contemplated arrangement.

There might have been an understanding between Bryant and the intestate, that this should be carried into effect. The plaintiff avers, that he believed the intestate apprized Bryant of the existence of the mortgage. But he was unable to prove it; and Bryant escaped the incumbrance. We have taken this view of the case to show, that the bill may be true, without necessarily imputing fraud to the intestate. He deceased in less than a year after these transactions, probably before any of the notes had become due. The plaintiff had confidence in him. We know not that it was not well warranted, from his character.

The facts stated in the bill do not afford sufficient evidence, that it was his intention to circumvent the plaintiff. Had he lived, every thing might have been arranged to the satisfaction of all concerned. Mere delay on the part of the intestate, the plaintiff making no movement to hasten him, we cannot regard as evidence, that fraud was meditated. Upon the whole, it may be deduced from the bill, that the intestate bought land of the plaintiff, having previously agreed to sell it again to Bryant, at an advance.

That it was his intention, as it was his interest, to exchange the securities with the plaintiff, who consented to receive Bryant’s, for those of the intestate. That although this was not positively agreed, the plaintiff had reason, from the proposition of the intestate, to believe that it would be done. That the business was neglected, until the intestate died, when his estate proving insolvent, the arrangement was defeated. It is not pretended, that the intestate received or held Bryant’s notes, under any express trust, in favor of the plaintiff.

As far as the trust is based upon the charge of fraud, if that ground was now open, we are not satisfied, that it is sustained by the bill. We perceive nothing in the transaction, which can give the claim of the plaintiff a preference over other creditors. It is the policy of the law, in relation to the estates of persons, who have died insolvent, that they should bo distributed pro rota among the creditors, with certain specific exceptions. And this policy is carried so far, that attachments are dissolved in suits, pending at the decease of the insolvent.

Whether trusts, in reference to personal property, express or resulting, are or are not to be excepted from the general operation of the law, we have no occasion to decide in the case before us. The bill is dismissed, but without costs.