
    CALVIN CAMPFIELD v. PETER A. JOHNSON.
    1. A judgment creditor of a trustee restrained from selling his title and interest in the trust property by execution.
    2. J. C. mortgaged lands to C. C., and afterwards conveyed the lands to C. G., in trust to apply the rents and profits towards paying the mortgage and a certain note given by J. C. to P. S., until a sale could be made of the premises at a fair price, and then to sell the same, or any part thereof, to pay the mortgage and the note, and to pay the residue of the proceeds of the sale to J. C.
    3. C. C. went into possession of the lands. J. C. afterwards died intestate, leaving infant heirs. C. C. assigned the mortgage to P. A. J., who filed his bill of foreclosure thereon.
    4. Pending the foreclosure suit, P. A. J. recovered judgments at law against C. C. on his personal liabilities, and caused executions to be levied on “ all the right, title and interest ” of C. C. in the premises so conveyed to him in trust. On bill filed by C. C., sale under the said levies was enjoined. And on motion to dissolve, without answer, the injunction was retained.
    On the 20th of March, 1830, Jonathan Campfield, since deceased, executed to Calvin Campfield a mortgage on three tracts of land in Morris county, to secure a bond of the same date, given by the said Jonathan to the said Calvin, conditioned for the payment of $2000.
    On the 18th of October, 1833, Jonathan Campfield and his wife executed to the said Calvin a deed for the mortgaged premises, in trust to apply the rents and profits towards paying the said encumbrance and a certain note held by Polly Sayre, until a sale could be made of the premises at a fair price, and then to sell the same, or any part thereof, towards paying the said mortgage and note, and the residue of the proceeds to pay over to the said Jonathan, or as he should direct; and in case the premises should not be sold before the mortgage became due, then to mortgage the premises again or sell the same, to pay the said mortgage and note.
    On the 5th of March, 1834, Calvin Campfield, as such trustee, conveyed one of the said tracts, a seventy-acre tract, to Alfred Ford, by deed executed by the said Calvin and his wife. Ford afterwards conveyed a part of this tract to Lewis Johnson, and the residue of it to Joseph Cutler.
    Jonathan Campfield, the mortgagor, died in Pennsylvania, weaving two infant sons, Jonathan and George, his heirs-at-law, and a widow, Martha, who has since intermarried with William Craig.
    On the 26th of October, 1844, Peter A. Johnson filed his bill of foreclosure on the said mortgage, stating the foregoing facts, and that the said Calvin Campfield has assigned the mortgage to him.
    The bill states that the complainant is informed and believes that Charles Ford, a judgment creditor of Alfred Ford, insists that Calvin Campfield conveyed the said premises to Jonathan Campfield, and took from him the said mortgage for the purpose of defrauding the creditors of the said Calvin.
    Calvin Campfield, the widow and infant heirs of Jonathan Campfield, and others, were made defendants. Calvin Camp-field put in his answer to the bill.
    In-, 1845, Calvin Campfield filed his cross-bill, stating, among other things, that on the 14th of April, 1830, a judgment was entered against him in favor of Peter A. Johnson, for $890:16; and that Johnson has caused execution to be issued thereupon, and to be levied on “ all the right, title and interest ” of him'the said Calvin in the said three tracts of land described in the said mortgage.
    That in 1838, Johnson recovered another judgment at law against him, on a note for $130, and that he has caused execution to be issued thereupon, and levied on “ all the right, title and interest ” of him the said Calvin in the said three tracts of land, and caused a sale thereof to be advertised for the 21st of July, 1845.
    This bill further states that when he, Calvin Campfield, in March, 1834, conveyed the seventy-acre tract to Alfred Ford, the said Alfred, with one Henry Ford, gave a bond conditioned for the payment of the said mortgage .in one year, and to indemnify Jonathan Campfield ; and that that bond has not been paid. That if the said seventy acre tract was sold on a final decree of this court, free from embarrassments, it would bring more than enough to satisfy all that may be found due Johnson on the mortgage, leaving the other tracts free for the said infants, and charges that the object of Johnson in selling under the said executions and levies is, to buy at a nominal sum, and get possession, and that such sale can only serve to embarrass the title.
    Calvin Campfield is in possession of the other two tracts described in the mortgage.
    This bill also states facts on which a charge is founded, that the assignment of the said bond and mortgage was fraudulently obtained by Johnson, from the agent of the said Calvin, without consideration ; and also states facts on which charges are founded, that the said judgments were fraudulently obtained.
    This bill prays that the said judgments may be set aside, and that the said Johnson may be decreed to deliver up to the said Calvin the said bond and mortgage; and an account of all moneys that Johnson may have received from Eord on the said bond and mortgage; that the said seventy-acre tract may be sold by the order of this court, &c.; and that, in the meantime, Johnson and the sheriff may be restrained by injunction from selling under the said executions and levies.
    The injunction was granted. A motion was made, without answer, to dissolve the injunction.
    J. J. Scofield and J. W. Miller, in support of the motion.
    
      S. Scudder and W. Pennington, contra.
    
   The Chancellor.

On this motion the transaction out of which the mortgage grew must be taken to have been bona fide, and the mortgage and the subsequent conveyance by the mortgagor to the mortgagee, in trust for the purposes stated in the pleadings, to be valid. And the motion will be considered, too, as if the infant heirs of the mortgagor were properly represented.

The question now before us is not whether Johnson properly obtained possession of the bond and mortgage; nor whether the judgments obtained by Johnson against Calvin Campfield should be set aside. It is whether Johnson, while proceeding to foreclose the mortgage, shall be permitted to sell, on judgments against Calvin Campfield on his own personal liabilities, the legal estate held by him in trust for the purposes stated in the pleadings.

I think the oestuis que trust should be protected from such a proceeding. It was said in argument, that Johnson has the right to sell, under the judgments, the interest of Calvin Camp-field in these lands, and then to have a jury pass on what that interest is; that is, to take the ground that the whole transaction of the conveyance by Calvin to Jonathan, and the mortgage and deed in trust from Jonathan to Calvin, were fraudulent and void as against creditors. This 'is not the right way of getting into that controversy.

Johnson’s own bill, the foreclosure bill, sets out the trust, on which the conveyance from Jonathan to Calvin, after the giving of the mortgage, was made.

A trustee cannot dispose of a trust estate as his own estate, unless to a bona fide purchaser without notice. If he do, the estate may be followed.

Calvin Campfield has no title or interest which he could convey to Johnson, in payment of his own debt. Johnson, therefore, cannot be permitted to sell his title and interest on execution. To allow him to do so could only have the effect of embarrassing the interest and estate of those beneficially interested.

Motion denied.  