
    Samuel Guild versus Daniel Holbrook and Trustees.
    An insolvent debtor assigned his real and personal estate to three of his creditors, V., A. and H., in trust to pay, in the first place, the debts due to the assignees, and next, those due to other creditors 5 and H. being likewise responsible for the debt due to V. and A., it was agreed between the three, that V, and A.’s demand should be paid before that of H. The whole property was insufficient to pay the demands of the assignees alone. It was held, that the three assignees had joint possession of the property for the purposes of the assignment, and that V. and A. therefore, who had the actual custody of it, could not be charged in a process of foreign attachment as the trustees of H.
    Where a person holds real estate, upon a promise to sell it and pay over the proceeds, he is not liable as trustee in a process of foreign attachment, it being contingent whether he will ever sell it and receive the proceeds.
    So if he has actually sold it, and taken promissory notes for the price, and the notes remain unpaid at the time of the service of the process, he cannot be charged as trustee.
    Expenses having been incurred and paid by V. and A., with the assent of H., in defending a suit in which the three had been summoned as trustees of the assignor, it was held, in a like process against V..and A. as trustees of H., that they were not liable for the amount of those expenses, but that the same were a charge on the property defended for the common benefit of the three assignees.
    It was also held, that the commission due to V". and A. for their services as assignees, accrued simultaneously with the performance of the services, and that in a process of foreign attachment against them to recover money which had come to their hands under the assignment, they might retain the amount of commission due at the time when they were summoned as trustees.
    Assumpsit. The writ was served upon Viles & Atkins (who were partners) as the trustees of Holbrook, on May 9, 1829.
    In their answers Viles & Atkins disclosed, that before the service of the writ, Loud & Hunt, being insolvent, had assigned to them and Holbrook jointly, certain real and personal estate and choses in action, for the purpose of paying debts due from the assignors to the assignees, and to other creditors ; that the property was received by the assignees jointly ; that the sums due to the respondents, amounting to about $ 3000, and those due to Holbrook, including his liabilities, amounting, as the respondents supposed, to more than $ 10,000, were to have the priority of other debts, and by the consent of Holbrook, who was liable to the respondents for nearly the whole sum due to them, the respondents’ demand was to be first paid; that the proceeds of the property assigned will be insufficient to pay the debts due to the respondents and to Holbrook ; that the personal estate and choses in action had been disposed of, and of the proceeds the sum of $ 5488‘26 had come into the hands of the respondents, and other small sums had come into the hands of Holbrook; that Holbrook assigned, by deed of quitclaim, to the respondents, his right and interest in the real estate, for the purpose of securing Atkins as bail for Holbrook in a certain suit, and after that suit was discharged, the real estate continued to stand in their names, as matter of convenience, until April 27, 1829, when it was sold for $ 1877, payable one fourth in cash and the residue by notes to the respondents, on a credit of six months, it being understood by the respondents and Holbrook, that the proceeds should be applied according to the original assignment; that on May 19, 1829, deeds were given by the respondents to the purchasers, in which the respondents’ wives released their right of dower, and at the time of the service of the writ, only $ 380 of the purchase money had been received by the respondents ; that the respondents were entitled to deduct from the property in their hands, sums paid or contracted to be paid by them to fit unfinished goods foi the market, for law expenses in defending a suit against the assignees as trustees of Loud & Hunt, and other incidental charges, all which were agreed to and sanctioned by Holbrook at the time when they were paid or contracted to be paid, and also to deduct a compensation for their time and services. The respondents annexed to their answers as a part thereof, an account in which they charge themselves with the sum of $ 5868-26, received before the service of the writ, and the) credit themselves with $ 6146T3, including their original demand against Loud & Hunt, and sums expended by them a# above mentioned, and $ 600 as a compensation for their ser vices. This last item was under date of February 25, 1830.
    
      March 18th.
    
    
      Leland, for the plaintiff.
    According to the terms of the assignment, the proceeds of the property ought to be divided between Holbrook and the respondents in nearly the proportion of ten to three. The respondents allege that Holbrook was responsible for their demand, and that it was agreed between them that that demand should be first paid ; but thev cannot, as against the creditors of Holbrook, defeat the assignment by a parol agreement. The respondents therefore have property deposited in their hands, which belongs to Holbrook, and which is subject to this trustee process.
    
      March 31st
    The account annexed to the answers, contains charges amounting to $ 1031, for law expenses, the greater part of which was paid to counsel employed to defend an action against Loud & Hunt as principal defendants and Holbrook and the respondents as their trustees. These expenses could not be charged against this fund, but should be borne by Holbrook and the respondents, (who were the only persons interested,) in proportion to their interest. Adams v. Cordis, 8 Pick. 262. The amount of Holbrook’s proportion, therefore, is in the hands of the respondents, and subject to this process.
    The respondents must be charged with the proceeds of the real estate. Where land is placed in the hands of a person to sell, with a promise to account for the proceeds, there is a “ credit ” within the meaning of tire statute of foreign attachment. That the respondents would be liable to Holbrook on account of the land was certain, the extent only of his responsibility being undetermined ; this case therefore does not belong to that class where the liability is contingént. Frothingham v. Haley, 3 Mass. R. 68 ; Thorndike v. De Wolf, 6 Pick. 123; Andrews v. Ludlow, 5 Pick. 28; Hyde v. Cross, 4 Mass. R. 404 ; Hazen v. Emerson, 9 Pick. 144 ; Willard v. Sturtevant, 7 Pick. 195 ; Badlam v. Tucker, 1 Pick. 400.
    The commissions claimed by the respondents, should be deducted out of the final balance in their hands after all their services under the assignment shall have been performed.
    
      H. A. Simmons and Gay, for the respondents.
   Per Curiam.

The first question is, whether the possession of all the effects assigned by Loud & Hunt was not joint in the respondents and Holbrook, or whether the respondents had the exclusive possession. The Court are of opinion that there is nothing in the circumstances disclosed in the answer of the trustees to distinguish the property in their hands from property generally, conveyed to assignees upon trust for the payment of debts. The conveyance to them was joint, for a joint purpose, and the legal interest both in the real and personal property vested in them jointly. The general rule is, that the possession follows the property ; and the possession of one under a joint title, is the possession of all holding under the same title. The circumstance that the property was in the custody of one, does not constitute a several possession. It must generally happen, that one of several joint owners of personal property must hold the custody for himself and co-tenants, unless they happen to be partners. But if the effects had been taken by a wrongdoer from the custody of either of them, a joint action of trespass or hover would have been the proper remedy. It was conceded in the argument, that if the property and possession were joint, in the respondents and Holbrook, the principal defendant, then they could not be charged as having in their possession any goods, effects and credits of the principal, and so were entitled to their discharge.

But they are also entitled to be discharged, on another ground, namely, that at the time of the service of the writ, they had not received the proceeds of the real estate. The plaintiff contends, that where land is conveyed to a person to sell and pay over the proceeds, the trustee may, before the sale, be charged in the process of foreign attachment; and it is urged that the promise to pay over, though contingent as to time and amount, is otherwise in regard to an ultimate liability to pay something. But the law will not warrant this view of the subject; and aldiough the estate is vested in the trustee, yet he is not liable to this process. There must be a certain debt to be attached ; the contingency must affect only the time and amount. A promise to sell land and pay over the proceeds, is not a promise to pay over money, but is an executory contract; and there may be several contingencies, without the fault of the trustee, that will prevent his owing money.

He may be superseded in the trust by this Court as a court of chancery, before any sale has been made. Or, if he has authority to sell and take notes for the purchase money, be will not be liable in this process until he has collected the notes. And the power to sell and take notes does not present so strong a case as the one under consideration, where the respondents had actually sold and taken notes which yet remain unpaid. The whole theory of the trustee process proceeds on the principle, that the money is on hand or will certainly come to hand. Striking out the real estate, the respondents clearly are not chargeable as trustees.

The plaintiff objects that the expenses incurred in defending the trust property, ought not to be charged on this fund ; and he refers to Adams v. Cordis, 8 Pick. 260. But that case has no application to the one before us. There the trustee was charged, and he asked to retain of the money in his hands belonging to the principal defendant, the costs incurred by him in that suit; which was disallowed by the Court. But here the whole fund was claimed against the three assignees, and defended for their common benefit, and Holbrook agreed that the costs should be paid out of the fund. The actual expenditure of the respondents, was a sufficient consideration for the promise of Holbrook.

It was further objected on the part of the plaintiff, that the respondents have no right to deduct their commissions until their trust shall have been determined ; but we think they have a right to compensation simultaneously with the services performed.

Trustees discharged. 
      
       See Tucker v. Clisby, 12 Pick. 22; Hopkins v. Ray, 1 Metc. 79; Sanford v. Bliss, 12 Pick. 116; Meacham v. McCorbitt, 2 Metc. 352; Wildes v. Nahant Bank, 20 Pick. 352; Wheeler v. Bowen, 20 Pick. 563; Holbrook v. Waters, 19 Pick. 354 j Morrill v. Brown, 15 Pick. 173; Stone v. Hodges, 14 Pick. 81; Taber v. Nye, 12 Pick. 105 ; Faulkner v. Waters, post, 473.
     