
    Jonas How, Jun. versus James Field and Trustee.
    Where lands are fraudulently conveyed by a debtor, the grantee is not thereby a trustee for creditors.
    The only question referred to the Court in this case was, whether John Frink was to be adjudged the trustee of Field.
    
    It appears from the answers of Frink, that when Field, the principal debtor, absconded, he left with Frink a number of papers, among which Frink afterwards, upon examination, found a note signed by Field for 500 dollars, payable by him to Frink, and that the note was signed and left with Frink without his privity; that previous to Field’s absconding he was indebted to Frink in the sum of 536 dollars, 94 cents; that for this sum Frink requested security, on which Field gave him his note for 2000 dollars, and a mortgage of land which he estimates as worth 1500 dollars, to secure the payment of it; that Frink wished for security for his just debt only, but at Field’s request, took the note and mortgage aforesaid; and that nothing has been received by Frink upon either of the said notes.
    
      Blake, for the plaintiff
    cited the case of Pierson vs. Weller 
      , as in point, if its authority was allowed.
    
      
       3 Mass. Rep. 564.
    
   * The opinion of the Court was delivered by

Parsons, C. J.

On the facts disclosed, we are of opinion that Frink must be discharged. He had not in his hands, at the time the writ was served, any goods, effects or credits of Field. Any debts due from the debtor to Frink, whether the debts are genuine or fictitious, cannot be goods, effects or credits of the debtor in Frink’s hands. He owed the debtor nothing, and he has no chattels in his possession, which being exposed by him Tan be taken in execution.

Paine and Ujpham, for the trustee.

The lands mortgaged are not effects within the statute, because the mortgage being fraudulent as to creditors, the lands mortgaged may be taken in execution, either by the plaintiff or by any other creditor. And it has long been settled that where lands are fraudulently conveyed by a debtor, the grantee is not thereby a trustee for creditors, because, as to them, the conveyance is void, and the lands are liable to their executions, without the assent or exposure of the grantee. If he was holden a trustee to the value of the lands, after having paid one creditor that value, another creditor might by his execution take the lands from him, and thus he would, in effect, be charged with the value without any consideration. Let the trustee be discharged with costs, as he submitted to examination at the first term.  