
    Calvin Richards versus Perez Allen, Principal, and Justus Russell, Trustee.
    A made an absolute deed of land to R, which was intended as a security for money to be advanced by R to and on account of A, and R, about a year after, gave A a bond to reconvey the land on payment of the money advanced in the mean time ; R afterwards sold the land on a credit for an amount more than enough to pay all that was due to him from A ; a part of the purchase money was secured by a mortgage of the land from the purchaser to R. R was afterwards summoned as trustee of A. At the time of the service, the amount secured by mortgage had not been paid, and the remainder of the price for which R sold, and which had been paid, did not amount to so much as was due from A to R. Held, that R was chargeable as trustee of A, for the difference between the price for which R sold the land, and the amount due to him from A.
    In a trustee process, where the defendant is defaulted in the Common Pleas, and judgment is given charging the trustee upon his answers, the trustee may appeal from tile judgment against him to this Court.
    It appeared from the answers of Russel], the trustee, that on February 7, 1820, Allen, the defendant, made a deed of his farm to Russell, and Russell gave Allen a note for 1500 dollars on interest. The note was given to enable Allen to raise money on it, and the land was intended as security, though the deed was absolute. In the course of the next four months Russell advanced various sums and gave notes to Allen, which were indorsed on the note for 1500 dollars; and on June 5, 1820, paid the balance of the note and took it up. On January 7, 1821, Russell gave Allen a bond to reconvey, if Allen should pay 1600 dollars before March 17 ; this sum was said to be made up of the 1500 and interest. Allen occupied the farm for fourteen months after the deed was given, without paying rent, and afterwards for two years at a rent of 120 dollars 8 year, which was paid to Russell. Russell paid 40 dollars to obtain a release of dower in the farm from a Mrs. Prentiss ; and in 1823 he sold the farm for 2000 dollars on a credit of four years, taking in payment notes of different persons, and the purchaser’s notes for 800 dollars which were secured by mortgage of the farm to Russell. At the time this action was brought, in October, 1828, and at the time of the answer, the notes secured by mortgage, which became due in the spring of 1827, remained unpaid ; and the purchaser had not personal property enough to pay them. Russell had taken no legal measures to compel payment. Russell considered himself as having obtained an absolute and unconditional title to the estate for an adequate consideration ; but if it was to be considered a trust estate, he claimed an allowance for various services and expenses in relation to the business specified in the answers, amounting in the whole to 207 dollars.
    Russell also held two notes of Allen on interest, one dated October 9, 1820, for 22 dollars, the other, November 13, 1820, for 37 dollars ; and an execution for 122 dollars 59 cents.
    In the Common Pleas the defendant was defaulted. After Russell had answered, he was adjudged trustee by the court, and by agreement of the parties an auditor was appointed to ascertain with what sum Russell should be charged, his report to be final between the parties. At a subsequent term of the Common Pleas, the auditor having made no report, Russell, by leave of the court, made an additional answer, the plaintiff objecting to its admission. The Common Pleas then adjudged Russell to be trustee ; from which judgment he appealed to this Court.
    Wells, for the plaintiff,
    moved to dismiss the appeal, on the ground that after the principal was defaulted, an appeal from the judgment charging the trustee would not lie, as it is not given by any statute. He cited Purple v. Clark, 5 Pick. 206; St. 1820, c. 79, § 4, 5. The provisions of the statute do not apply to the case of a trustee. No issue was joined. This statute requires the party appealing to enter into a recognisance for costs ; but a trustee is not liable for costs. The other provisions in these sections are not at all applicable to the case of a trustee, and show that the legislature only considered the case of a common action between plaintiff and defendant. The statute only provides for an appeal on questions of fact, and gives a bill of exceptions on questions of law. A trustee’s answer presents a mixed question of law and fact, for which the statute makes no provision. A certiorari would be the proper remedy for the trustee, as the proceedings are not at common law. Gile v. Moore, 2 Pick. 386. If the trustee had a right to appeal, it was lost by the proceedings in the Common Pleas after he was adjudged trustee.
    
      Sept 23d.
    
    
      
      Sept. 25th
    
    The Court of Common Pleas erred in receiving the answer which was made after the case was submitted to an auditor with an agreement that his report should be final; and that answer ought not to be considered here.
    On the merits : the conveyance of the land in 1820, was fraudulent and void as to creditors, being on a secret trust. The whole proceeds of the land may be held by us in this process. Burlingame v. Bell, 16 Mass. R. 318. JDevoll v. Brown, 5 Pick. 448. Even if the transaction was legalized by the bond, it is evident that there is a balance in the trustee’s hands after paying all claims to himself. Cleveland v. Clap, 5 Mass. R. 201; Sebor v. Armstrong, 4 Mass. R. 206; Ripley v. Severance, 6 Pick. 474; Hart v. Ten Eyck, 2 Johns. Ch. R. 62. The trustee is properly chargeable on account of the unpaid notes taken for the land, since he has been guilty of negligence in not collecting them. Even if the trustee was not bound to disclose the trust, he is chargeable, having disclosed it. Barrell v. Joy, 16 Mass. R. 221.
    
      Grennell, for the trustee.
   Parker C. J.

delivered the opinion of the Court. The answer of the trustee does not show any fraudulent intent between him and the principal, and if the original transaction could have been avoided by creditors, still upon the new arrangement, a bond being given by the respondent, the conveyance is good for the purposes intended. But the respondent held the land until the sale, and the proceeds afterward, as the trustee of the principal, for the payment of the debt to himself and such expenses as he had a right to charge, and for the use of the principal as to any surplus. He is therefore to account for the proceeds, and upon the account rendered it is clear that there is a balance in his hands belonging to the principal. He must therefore stand charged as trustee.

It was moved to dismiss this appeal on the ground that no issue was joined at the Court of Common Pleas; but we are of opinion that the allegation of the plaintiff, that there were goods, effects, &c. deposited with the respondent, and his denial, constitute an issue, within the intent of the legislature. 
      
       See Bazen v. Emerson, 9 Pick. 144; Bissell v. Strong, 9 Pick. 562.
     
      
       See Piper v. Willard, 10 Pick. 34.
     