The opinion of the court was delivered by
Bennett, Chancellor.
— The orator seeks, by his bill, to set aside the conveyance from Cochran to Zachariah Whiting and from Zachariah Whiting to Dexter Whiting, at least, so far as may be necessary to perfect and quiet his title to that portion of the premises levied upon under his execution against Cochran, or that the said Zachariah and Dexter Whiting may be decreed to pay the orator the amount of his debt against Cochran.
[705]*705The bill proceeds upon the ground that the conveyance from Cochran to Zachariah Whiting, was a fraudulent and deceitful conveyance, made upon a fraudulent and secret trust, for the benefit of Cochran, and designed to place the property beyond the reach of his creditors, and that Dexter Whiting was privy to the same, and well understood the character of the transaction. The bill is taken as confessed against Cochran, and Zachariah Whiting denies, in his answer, very fully all fraud, and also that there was any trust existing between him and Cochran at the time of the conveyance which was in any way to enure to the benefit of Cochran. The answer, in this respect, stands contradicted by a great number of witnesses who testify very fully to the admissions of Zachariah Whiting, which go to show that he held this property in trust for the benefit of Cochran, after the satisfaction of the mortgage debt due to Harper at the time of the conveyance, and the payment of the Montpelier bank debt. The disparity between the value of the premises conveyed and the sums paid lead us to the same conclusion. It seems, from the current of the testimony, that the premises were worth seven or eight hundred dollars, and that Zachariah Whiting received in fact upon their sales seven hundred and fifty dollars, and has paid as a consideration for them only about $350. The payment of the $150, to the wife of Cochran by Zachariah Whiting after the sale, though he claims in his answer that this was by way of gift, and as a present to the wife, and not on the ground that he had taken the conveyance of the premises under any trust for her husband, goes far to satisfy the mind that there must, at least, have been an implied trust.
On a careful examination of the whole testimony in tha case, we have no doubt that a trust existed between Cochran and Zachariah Whiting upon the conveyance of this estate which was to enure to the benefit of Cochran, though it might not have been created in express language. But we are not entirely satisfied, from the evidence, that an actual fraud was intended, though it has in effect, all the operation of fraud, as against the creditors of Cochran. It seems that in the spring preceding the plaintiff's attachment, Zachariah Whiting had sold seventy five acres of the farm to one At-well, for which the latter paid $650, and no question is [706]*706made about Atwell’s purchase having been made on his part without notice, and bona fide and upon a full and valuable consideration. In no event, then, could he be disturbed in his purchase. The remaining seventy five acres was attac|-iec[ by the orator as the property of Cochran, while the title remained in Zachariah Whiting. Soon after the attachment the latter sold and conveyed this same portion of the farm to Dexter Whiting, and the orator, after the sale, proceeded to extend his execution on a part of it, and now claims to have the deed from Cochran to Zachariah Whiting, and also the deed from Zachariah to Dexter Whiting vacated, so far, at least, as may be necessary to quiet his title. It is alleged in the bill, that, at the time of the purchase of the twenty five acres by Dexter Whiting, he had notice of the orator’s attachment, yet, it is not averred in the bill that he had notice of the existing trust upon which he held the lands.
In order to charge the lands in the hands of Dexter Whiting with this trust, he must have had either at the time of the purchase, or before the payment of the purchase money, notice of the existence of such trust, and this should be so alleged in the bill, and it would then become the duty of the defendant, in his answer, not only to make a denial of the notice before the purchase, but also before the payment of the purchase money. The answer of Dexter Whiting seems to have been drawn upon the supposition that the bill contained, at least, an averment of notice, at the time of the purchase, and contains an express and positive denial of notice at that time, but is silent in regard to it at the time of the payment of the consideration money. In this respect the answer would have been entirely insufficient, had the bill stated a notice. Upon this bill we cannot vacate the title of Dexter Whiting to any part of the twenty five acres. He will therefore be dismissed, but, under the particular circumstances of the case, without costs.
The next enquiry presented for our consideration is, whether the orator is entitled to a decree against Zachariah Whiting for the payment of his debt. It is said, in argument, that though he may have in his hands certain proceeds of this farm, which may belong to Cochran, yet, it is but a debt due him, and chancery will not take jurisdiction and order the money paid to his creditor.
[707]*707We have no doubt, that this is a case of appropriate chancery jurisdiction. The orator first seeks to quiet his title at law to the lands he had levied upon, by having the deeds to the Whitings vacated on the ground of fraud. If he failed in this it was his object to reach the funds in the hands of this defendant which he held in trust for Cochran.
Though courts of law and equity have concurrent jurisdiction in matters of fraud, yet, for the most part, matters of trust and confidence are exclusively cognizable in courts of equity, and chancery would have afforded Cochran an appropriate remedy. The only question that needs any examination is, whether the orator, as his judgment creditor, stands in his place and succeeds to his rights. It seems to be well settled that courts of chancery’have power to assist a judgment creditor, not only to discover, but to reach the property of the debtor in the hands of a trustee and beyond the reach of an execution at law; and that, to get possession of the equitable interest of a debtor, as a resulting trust in goods and chattels, the judgment creditor must come into chancery, except, perhaps, that in some cases he might be relieved by the trustee process. It is necessary, however, that before a judgment creditor can come into this court for relief, he should first take out execution and cause it to be levied, or returned nulla bona, so as-to show thereby that his remedy at law fails, and that he has also, by that act of diligence, acquired a legal preference to the debtor’s interest. The plaintiff, in the present case, caused his execution to be returned non est as to the body and personal estate of his debtor, and for want thereof extended it upon the land. Angell v.Draper, 1 Vernon’s R. 399. Taylor v. Jones, 2 Atk. R. 600. Horn v. Horn, Amb. R. 79. Partridge v. Gopp, id. 596. McDermutt et al. v. Strong, 4 Johns. C. R. 687. Hadden v. Spader, 20 Johns. R. 554.
The case of McDermutt et al. v. Strong et al., 4 J. C. R. is very analogous to the case now before us, in principle. In April 1808, one Robertson, then being the owner of a ship, assigned it to W. M.
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The opinion of the court was delivered by
Bennett, Chancellor.
— The orator seeks, by his bill, to set aside the conveyance from Cochran to Zachariah Whiting and from Zachariah Whiting to Dexter Whiting, at least, so far as may be necessary to perfect and quiet his title to that portion of the premises levied upon under his execution against Cochran, or that the said Zachariah and Dexter Whiting may be decreed to pay the orator the amount of his debt against Cochran.
[705]*705The bill proceeds upon the ground that the conveyance from Cochran to Zachariah Whiting, was a fraudulent and deceitful conveyance, made upon a fraudulent and secret trust, for the benefit of Cochran, and designed to place the property beyond the reach of his creditors, and that Dexter Whiting was privy to the same, and well understood the character of the transaction. The bill is taken as confessed against Cochran, and Zachariah Whiting denies, in his answer, very fully all fraud, and also that there was any trust existing between him and Cochran at the time of the conveyance which was in any way to enure to the benefit of Cochran. The answer, in this respect, stands contradicted by a great number of witnesses who testify very fully to the admissions of Zachariah Whiting, which go to show that he held this property in trust for the benefit of Cochran, after the satisfaction of the mortgage debt due to Harper at the time of the conveyance, and the payment of the Montpelier bank debt. The disparity between the value of the premises conveyed and the sums paid lead us to the same conclusion. It seems, from the current of the testimony, that the premises were worth seven or eight hundred dollars, and that Zachariah Whiting received in fact upon their sales seven hundred and fifty dollars, and has paid as a consideration for them only about $350. The payment of the $150, to the wife of Cochran by Zachariah Whiting after the sale, though he claims in his answer that this was by way of gift, and as a present to the wife, and not on the ground that he had taken the conveyance of the premises under any trust for her husband, goes far to satisfy the mind that there must, at least, have been an implied trust.
On a careful examination of the whole testimony in tha case, we have no doubt that a trust existed between Cochran and Zachariah Whiting upon the conveyance of this estate which was to enure to the benefit of Cochran, though it might not have been created in express language. But we are not entirely satisfied, from the evidence, that an actual fraud was intended, though it has in effect, all the operation of fraud, as against the creditors of Cochran. It seems that in the spring preceding the plaintiff's attachment, Zachariah Whiting had sold seventy five acres of the farm to one At-well, for which the latter paid $650, and no question is [706]*706made about Atwell’s purchase having been made on his part without notice, and bona fide and upon a full and valuable consideration. In no event, then, could he be disturbed in his purchase. The remaining seventy five acres was attac|-iec[ by the orator as the property of Cochran, while the title remained in Zachariah Whiting. Soon after the attachment the latter sold and conveyed this same portion of the farm to Dexter Whiting, and the orator, after the sale, proceeded to extend his execution on a part of it, and now claims to have the deed from Cochran to Zachariah Whiting, and also the deed from Zachariah to Dexter Whiting vacated, so far, at least, as may be necessary to quiet his title. It is alleged in the bill, that, at the time of the purchase of the twenty five acres by Dexter Whiting, he had notice of the orator’s attachment, yet, it is not averred in the bill that he had notice of the existing trust upon which he held the lands.
In order to charge the lands in the hands of Dexter Whiting with this trust, he must have had either at the time of the purchase, or before the payment of the purchase money, notice of the existence of such trust, and this should be so alleged in the bill, and it would then become the duty of the defendant, in his answer, not only to make a denial of the notice before the purchase, but also before the payment of the purchase money. The answer of Dexter Whiting seems to have been drawn upon the supposition that the bill contained, at least, an averment of notice, at the time of the purchase, and contains an express and positive denial of notice at that time, but is silent in regard to it at the time of the payment of the consideration money. In this respect the answer would have been entirely insufficient, had the bill stated a notice. Upon this bill we cannot vacate the title of Dexter Whiting to any part of the twenty five acres. He will therefore be dismissed, but, under the particular circumstances of the case, without costs.
The next enquiry presented for our consideration is, whether the orator is entitled to a decree against Zachariah Whiting for the payment of his debt. It is said, in argument, that though he may have in his hands certain proceeds of this farm, which may belong to Cochran, yet, it is but a debt due him, and chancery will not take jurisdiction and order the money paid to his creditor.
[707]*707We have no doubt, that this is a case of appropriate chancery jurisdiction. The orator first seeks to quiet his title at law to the lands he had levied upon, by having the deeds to the Whitings vacated on the ground of fraud. If he failed in this it was his object to reach the funds in the hands of this defendant which he held in trust for Cochran.
Though courts of law and equity have concurrent jurisdiction in matters of fraud, yet, for the most part, matters of trust and confidence are exclusively cognizable in courts of equity, and chancery would have afforded Cochran an appropriate remedy. The only question that needs any examination is, whether the orator, as his judgment creditor, stands in his place and succeeds to his rights. It seems to be well settled that courts of chancery’have power to assist a judgment creditor, not only to discover, but to reach the property of the debtor in the hands of a trustee and beyond the reach of an execution at law; and that, to get possession of the equitable interest of a debtor, as a resulting trust in goods and chattels, the judgment creditor must come into chancery, except, perhaps, that in some cases he might be relieved by the trustee process. It is necessary, however, that before a judgment creditor can come into this court for relief, he should first take out execution and cause it to be levied, or returned nulla bona, so as-to show thereby that his remedy at law fails, and that he has also, by that act of diligence, acquired a legal preference to the debtor’s interest. The plaintiff, in the present case, caused his execution to be returned non est as to the body and personal estate of his debtor, and for want thereof extended it upon the land. Angell v.Draper, 1 Vernon’s R. 399. Taylor v. Jones, 2 Atk. R. 600. Horn v. Horn, Amb. R. 79. Partridge v. Gopp, id. 596. McDermutt et al. v. Strong, 4 Johns. C. R. 687. Hadden v. Spader, 20 Johns. R. 554.
The case of McDermutt et al. v. Strong et al., 4 J. C. R. is very analogous to the case now before us, in principle. In April 1808, one Robertson, then being the owner of a ship, assigned it to W. M. upon trust to sell it, and, out of the proceeds, to pay certain debts of Robertson and to account for the surplus to Robertson himself, or to his assignees, if any in the mean time should be appointed under the insolvent law of New York. The plaintiffs severally obtained [708]*708ju^B'menis against Robertson in May, 1808, and, in May and June, 1808, levied their executions on the ship, as far as was cons'stcnt with the prior assignment; but the sheriff returned he could not raise the money thereon by reason of the assjgnment Robertson. W. M. had transferred his trust to A., and the ship was was sold, by A., with the consent of the plaintiffs, in March, 1809, and the surplus proceeds, after satisfying the trusts, were secured by a note at six months, taken in part payment of the ship on its sale. The note was deposited with the defendants, who had been made party by a supplemental bill by the consent of the plaintiffs in trust, to receive the money on it when due, and to hold it subject to the order of the court in the premises. The deposit of the note with the defendants was on the 30th of March, 1809, and in the June following Robertson was discharged under the insolvent act, and the defendants in the supplemental bill were appointed his assignees. The note was paid when due, and these defendants claimed the right to distribute the money as the assignees of Robertson, rateably among all his creditors.
Soon after the levy of the executions, and as early as July, 1808, the plaintiffs gave notice to A. of their judgments, executions and levy, and that they should look to him for the surplus, after satisfying the valid trusts which had priority to the lien of their executions. Upon this state of facts the court held that the surplus of the debtor’s interest in the ship, after satisfying the trusts for which it was assigned, could be reached in chancery by the creditors of the debtor while in the hands of the trustee, and that, as this remained undisposed of by the debtor, to whom it resulted, at the time of the levy and filing of the bill, their right could not be affected by a subsequent assignment, by the debtor, of that equity. The money held in trust, as the surplus, was decreed to be paid to the plaintiffs. See also Bayard v. Hoffman. 4 J. C. R. 450.
The orator, in the present case, has used every reasonable diligence to satisfy his judgment by a proceeding at law. He has levied upon the land itself, conveyed to the trustee, but, as this had passed into the hands of a b onafide purchaser, without notice of the trust, he cannot be quieted- in his title to the land itself, but he does thereby acquire an equitable [709]*709lien to the extent of his debt, upon the surplus of the proceeds in the hands of the trustee resulting to Cochran, the debtor. Cochran himself could have enforced this against Zachariah Whiting in chancery, and as the orator has acquired Cochran’s equitable right, he may well do the same. The case of Donovan v. Finn et al., 1 Hopk. R. 59, to which we have been referred by the counsel for the defendants, is not like the present. In that case, the debtor had property consisting of a debt due to him, and his creditors, having obtained judgment at law against him, and having, caused a fieri facias to be returned nulla bona, went into chancery and asked that court to compel the debtor of his debtor to make payment to him in satisfaction of the judgment. The court, in that case, indeed held that there was neither fraud, nor trust, nor accident, nor any other ingredient of equitable jurisdiction and dismissed the bill. The subject of the suit was, as between the immediate parties, purely in the character of a debt, and exclusively of legal jurisdiction, and hence the court thought that there was no foundation for equitable interference.
The case of Fisher v. Leavitts, 6 Vt. R. 328, is of the same character.
The decree, then, in this case against Zachariah Whiting will be, .that he pay to the orator, out of the surplus trust-funds remaining in his hands, resulting to Cochran, the sum of $71,68, it being the amount of the orator’s claim at the time of the levy of his execution and the interest thereon from that date, together with the orator’s taxable costs, to be paid in one hundred and twenty days, and, in default thereof, execution to issue ; the costs not to be paid from the trust-fund, inasmuch as this defendant has wrongfully, in the opinion of the court, denied the existence of the trust, and founded his defence on the denial thereof.
Note. — The case of Russell & Washburn v. Zachariah Whiting et al., in chancery, came on for a hearing at the same term of the court. The orators, judgment creditors of Oliver Cochran, had caused their execution to be returned non est, as to the personal property and body of Cochran, and for want thereof had caused it to be extended on a portion of the farm conveyed by their debtor to Zachariah Whiting, but not till after the whole farm had been sold by [710]*710bim. In other respects the allegations, and proofs were substantially the same as in the case of Waterman v. Cochran et al., ante 699. 3
The court decreed that an account should be taken and tjie (jefen(jant) Zachariah Whiting, should pay to the orators the balance of the surplus of the proceeds from the sale of the farm remaining in his hands after the payment of the two debts which he had assumed to pay when he took his deed, and the debt which he had been decreed to pay Thomas Waterman, provided, upon taking the account the sum should not exceed the plaintiff’s debt and interest, and, in that event, so much as would satisfy the plaintiffs claim. Zachariah Whiting however was allowed the one hundred and fifty dollars paid to the wife of Oliver Cochran, on the ground, that that payment was prior to the levy of the plaintiff’s execution on the land, and also ten dollars paid for taxes on the land and for costs paid on one of the debts he had assumed to pay. He was also charged with a balance of interest on the trust-funds in his hands. He was also decreed to pay costs to the orators, but was not allowed to pay them, or retain his own costs out of the trust-fund on the ground that he had denied and resisted the trust. He was not allowed any compensation for the performance of the trust for the same reason.
The parties having taken the account by consent, according to the foregoing principles, a final decree was made accordingly.
In this, and the preceding case, Redfield, Chancellor, did not sit on- account of ill health.