
    Shaffer v. Alden.
    Trial of tire right of property. The goods were taken as the property of B. on a writ of attachment against him by A. B. had executed a deed to C. for the goods in trust for the payment of certain specified debts; the deed provided that after the debts were paid, the overplus should be paid by C. to B.; afterwards B. executed another deed to 0. in trust for the payment of other specified debts, after the debts first specified wore paid, and providing that the overplus be paid to B.; after the execution of the deed and delivery of the property, A. took out an attachment and had it levied on said goods. C. obtained judgment. Held, that there was no error, as the record did not show that A. proved, on the trial, independently of his affidavit, the existence of a debt due him. from B.
    
    APPEAL from tbe Bartholomew Circuit Court.
    
      Tuesday, May 28.
   Blackford, J.

This was a proceeding commenced on the 12th of March, 1847, before a justice of the peace, by Alden against Shaffer, to try the right of property in certain goods. The goods had been taken by the sheriff of Bartholomew county as the property of one Meredith, on a writ of attachment against Meredith in favor of Shaffer. The defendant obtained a verdict and judgment before the justice. Alden appealed to the Circuit Court, and there obtained a judgment in his favor. Shaffer moved for a new trial, but the motion was overruled.

The material facts are as follow:

On the 30th of May, 1846, Meredith, being a merchant, and having in his store about 3,000 dollars’ worth of merchandise, executed a deed for the goods to Alden, in trust for the payment of certain specified debts, amounting to about 1,400 dollars. The deed provided that, after said debts were paid, the overplus of goods, money, or securities, should be delivered by Alden to Meredith. The deed was recorded on the 27th of July, 1846.

On. the 15th of June, 1846, Meredith, still having possession of the goods, except such of them as he had sold, executed another deed for the goods on hand to Alden, in trust for the payment (after the debts named in the previous deed were paid) of other specified debts amounting to near 1,200 dollars. This second deed also provided that the overplus of moneys and goods should be transferred to Meredith by Alden. This deed was recorded on the 27th of July, 1846.

In February, 1847, Meredith delivered possession of the goods remaining on hand to Alden. About two weeks after such delivery, namely, on the 23d of February, 1847, Shaffer took out an attachment against Meredith's goods, which attachment, on the next day after it issued, was levied on the goods in Alden's possession. The goods thus levied on were worth about 1,400 dollars. Shaffer's claim, as sworn to, amounted to 161 dollars.

There was some evidence relative to Meredith's receiving and putting into his store some additional merchandise, after the execution of the deeds of trust; but the evidence is too indefinite to require further notice.

Shaffer contends that the deeds of trust are void as to him, on account of their containing a reservation for Meredith of the overplus, after payment of the specified debts. This objection to the deeds would have been valid, if Shafer had been a creditor of Meredith when the deeds were executed. 2 Kent’s Comm. 535. — Goodrich v. Downes, 6 Hill, 238. — Barney v. Griffin et al., 8 N. York, L. O. 68. Whether the objection, had it 'rested on the ground that Shaffer was a subsequent creditor, could have been sustained, we need not stop to inquire. In the case before us, the transcript, which contains all the evidence, does not show that Shaffer proved that he was, at any time, a creditor of Meredith. The only mention of the subject made in the transcript is the following : “ That the goods attached were of the value of 1,422 dollars and 55 cents, under the attachment of Charles Shaffer, whose claim, as sworn to, amounted to the sum of 161 dollars.” All we understand from that passage is, that Shaffer's affidavit to procure the attachment stated that his claim amounted to 161 dollars. The passage does not show that Shaffer proved on the trial, independently of his own affidavit, the existence of a debt due to him from Meredith.

L. F. Coppersmith, for the appellant.

J. G. Marshall, for the appellee.

The deeds, notwithstanding the reservation of the over-plus, were valid as to the parties to them; and it was impossible for Shaffer to object to the deeds on account of that reservation without other proof than his own affidavit, that he was a creditor of Meredith.

Shaffer also objects to the deeds because of Meredith retaining possession of the goods. We need not inquire as to what would have been the effect of that possession, had Shaffer been a creditor of Meredith. As the case stands, there can be nothing in the objection.

Per Curiam.

The judgment is affirmed with costs, &c.  