ORLEANS, March, 1842.

Woods

v.

Scott et al.

2. Admitting that the plaintiff's attachments created a lien upon the equitable interest of Scott, it then becomes important to inquire whether Baxter, at the time of the attachments, or at any other time thereafter, held the legal estate in the premises attached in trust for Scott.

That no such trust existed is apparent on several grounds. 1. Baxter executed his bond to Gillett without any knowledge of the existence of Scott, and if Baxter held the legal estate in trust he held it for the person to whom he had covenanted to convey.

2. There is no evidence in the case to show that Baxter had any notice, at any time, that Scott either had, or pretended to have, any interest in the buildings by him erected. The most that can be said by the plaintiff on this point is that the manner in which the business was conducted by Scott and Gillett, subsequently to the execution of Baxter's bond, was such as might induce Baxter to suspect that Scott had an interest in the buildings. But this suspicion would not justify Baxter in treating Scott as the owner, or refusing to convey to Gillett according to the conditions of his bond. It would be equally absurd and unjust to charge Baxter as the trustee of Scott, without proof beyond mere circumstances, which might or might not have created a suspicion in the mind of Baxter that Scott had acquired an interest in the premises.

3. Admitting that Baxter had notice that Scott erected the buildings on the premises with his own funds, by the permission of Gillett, this would not give Scott any right to demand a deed from Baxter, or any other right which he could enforce as against Baxter without Gillett's consent. If Scott had no right which he could enforce against Baxter, his creditors have acquired none by their attachment which can be enforced. It would be absurd to say that Scott, by building upon the premises by the consent of Gillett, acquired any right as against Baxter, when it must be admitted that he could not protect Baxter from any suit brought by Gillett against him either to enforce the execution of his contract or recover damages for non-performance.

4. Admitting that Scott and Leslie made use of Gillett's name to conceal Scott's property, this will not in any way affect Baxter, or alter his rights and duties, unless he had

notice when he executed the first bond, and there is no evidence in the case which has a tendency to prove any such notice.

III. There is no pretence in the case that Baxter has now or ever had any of Scott's property in his hands, to indemnify himself against the effect of the plaintiff's attachments.

The opinion of the court was delivered by

WILLIAMS, Ch. J.-The orator's bill is confessed by Scott and by Gillett. As to them, it may be considered that Scott was the sole owner of the premises purchased of Baxter, after paying the amount due to Baxter; that Scott erected the buildings and made the improvements with his own means, and that Gillett had no interest therein.

Baxter has put in an answer, which is traversed and testimony has been taken.

From the testimony it appears that Scott was indebted to the orator as early as the year 1827; that some time in January, 1830, Baxter gave his bond to Gillett to deed him the premises, on the payment of fourteen hundred dollars, and an annual rent of one hundred and sixty-eight dollars; that very soon afterwards, Scott moved on to the premises, made improvements, erected a new tavern house and other buildings, and continued to occupy them until March, 1835, when he sold to one Doolittle, and, in the course of this time, he contracted a debt with Baxter and his partner, Edmunds, of from ten to fifteen hundred dollars for materials, paying hands, &c.

In August, 1834, the orator caused the land, buildings, &c., to be attached upon two writs, as the property of Scott, in due form of law, on which attachments judgments were rendered, and, on the fifteenth day of May, 1835, executions issuing thereon were levied on forty-nine one-hundredths, of the premises, as the property of Scott, for the sum of about four hundred and thirty-four dollars. In this levy the appraisers estimated the whole premises as worth two thousand nine hundred and thirty-three dollars and thirty-four cents, and the sum due to Baxter as two thousand and fifty dollars.

On the fifth of March, 1835, the premises were sold by Leslie, as the agent of Scott, or Gillett, or both, to Doolittle for three thousand dollars; of which, two thousand

ORLEANS,
March,
1842
Woods

v.

Scott et al.

ORLEANS, Murch, 1842.

Woods

v.

Scott et al.

one hundred dollars were due to Baxter, for the original purchase money. Doolittle secured to Baxter and his partner, Edmunds, the remaining nine hundred dollars. It appears that of the nine hundred dollars, five hundred dollars were appropriated to pay the debt due to Baxter & Edmunds, before mentioned, and for four hundred dollars they (B. & E.) gave their note running to Gillett. The balance of Baxter & Edmund's debt against Scott was paid by a conveyance executed by Scott of part of the premises included in the bond first given to Scott. That bond was given up, Baxter conveyed to his partner, Edmunds, one undivided half of the premises conveyed by Scott to them, thus vesting in Baxter & Edmunds the title thereto. Baxter then executed a new bond to Doolittle, conditioned, to convey the premises purchased by him,on the payment of twenty-one hundred dollars and the interest thereon, which was due in March, 1837.

It appears to us, undeniably, that Gillett had no interest in the original purchase by Scott from Baxter, nor is there any evidence proving, or tending to prove, that he ever advanced any thing to Scott towards the buildings, or had any debt whatever against him. He has put in noanswer to the bill, either denying the facts set forth therein, or setting up any claim either in law or equity thereto, or any debt due, or claim against Scott. As it respects him, therefore, by his suffering the bill to be taken as confessed, these facts must be conceded. No evidence has been introduced to show or establish any such claim of Gillett. Leslie, in his deposition, does not state any such debt, and there is no other evidence, except as to the sayings of Scott and Leslie, which cannot be considered as legal evidence in this cause. If it was important for either of the defendants to establish any legal or equitable claim in Gillett, as against the creditors of Scott, it is sufficient to say that no evidence to that effect has been introduced, but, on the contrary, all the evidence tends to prove that his name alone was used for the benefit of Scott. We consider then that Scott had such an interest in the premises, at the time of the attachment made by the orator, as was subject to be taken by his creditors, either at law or in equity, and that if the attachment had been immediately followed by a bill in equity, enjoining Baxter from conveying

to any other person than Scott, Gillet or the orator, the
remedy of the orator would have been unquestionable;
that is, the orator would have been permitted to take the
place of Gillett or Scott, and, on paying to Baxter the
amount due, would have been entitled to a conveyance of
so much as would satisfy his debt. We are not prepared
to say that the attachment made in August, 1834, should
operate as an injunction to Baxter not to comply with the
condition of his bond made to Gillett. On the contrary,
we are inclined to the opinion that, notwithstanding the at-
tachment, if Gillett had either paid or tendered the amount
due on the bond and demanded the conveyance, Baxter
would have been justified in deeding to Gillett, according to
the terms of the bond originally given to him. But, in that
case, the attachment would have held the land, &c., as
against both Scott and Gillett, after paying the amount due
or paid to Baxter, and the remedy of the orator would have
been against them alone. We find that Baxter had actual
notice of the attachment, as appears from the testimony of
Edmunds. He would not, therefore, be justified in convey-
ing to any one else, so as to defeat the orator's claim against
Gillett and Scott. We learn, however, that while Gillett
held the bond of Baxter, and while Scott was erecting
the buildings, Scott contracted a debt with Baxter & Ed-
munds to a large amount, for the very purpose of making the
improvements and erecting the buildings, and that Leslie,
who held the bond, agreed that it should not be given up, until
that debt was paid, and this took place previously to the service
of the attachment for the orator's debt. It was, therefore, both
legal and equitable, that so much of the purchase money,
on the sale to Doolittle, as was necessary to pay the balance of
that debt, should be applied for that purpose, and, for the
residue, the amount for which the note of Baxter & Ed-
munds was given to Gillett, we think the orator has a claim,
and that it should be paid to him. This, we learn, is four hun-
dred dollars, and though the testimony does not fix the sum
with accuracy, yet we think that should be taken as the sum
for which the defendant, Baxter, and his partner, Edmunds,
gave their notes to Gillett, as they have introduced no testi-
mony to fix the sum more accurately and precisely.

We have had some doubts whether Edmunds should not
VOL. XIV. W. R. IV.

67

ORLEANS,
March,
1842.
Woods

v.

Scott et al.

ORLEANS,
March,
1842.
Woods

v.

Scott et al.

have been a party to this bill, as Baxter & Edmunds gave the note to Gillett. This, however, was not insisted on in the hearing before the chancellor and has not been urged before us. Indeed, we could not, in this court, refuse a decree on that ground, as it could have been obviated, if insisted on at the hearing before the chancellor. There is no proof nor pretence that the note given to Gillett has been paid. Moreover, we think that, after Baxter had actual notice of the orator's attachment, he would only have been justified in deeding to Gillett and receiving the debt due to Baxter & Edmunds, but not in paying anything either to him or Scott, or creating any further incumbrance on the equitable claim of the orator to the lands and buildings, for the payment of the debt.

We have further had some doubts, whether this bill was so framed as to entitle the orator to the decree we are about to make. These have, however, yielded, on further examination. The end and scope of the orator's bill is to obtain a satisfaction of his debt, out of the interest which Scott had in the premises, at the time of the attachment. He had levied his attachment and execution on what appeared to him to be that interest, and which he was justified in considering as the interest of Scott, from the facts which he has proved to have been then in existence. From the evidence, however, it appears that, in equity, Baxter & Edmunds had a further claim which should be considered as a charge on the estate, and although the orator may not, on that account, be entitled to the specified relief prayed for, or a deed of the premises levied on, yet, under his prayer, that the defendant pay him the amount thereof, and his general prayer, he is entitled to have a decree for the payment of the amount of the note which was given to Gillett; as Baxter should not have conveyed to any one but Gillett, after notice of the attachment, and thereby either embarrass the orator in the collection of his debt or turn him over to other parties to obtain what was equitably due to Scott, the legal right to which was in the name of Gillett.

As a result of the whole, we are of opinion that Scott made the purchase of Baxter for which the first bond was given that he was at the whole expense of building; that he occupied the tavern for his own benefit, and was, in short,