Mayo v. Moritz

The deed of trust does not have the effect to make the scrip-holders partners. It does not contemplate the carrying on of a partnership business upon the joint account of the grantor and the scrip-holders, and in this respect the case is unlike Gleason v. McKay, 134 Mass. 419, and Phillips v. Blatchford, 137 Mass. 510. The scrip-holders are cestuis que trust, and are entitled to their share of the avails of the property when the same is sold.

If the trustees contracted a debt to the plaintiff, they are liable for it personally, and an action at law may be maintained by him against them. Creditors may also resort to the trust *485fund, under proper circumstances. Mason v. Pomeroy, ante, 164. In the present case, the plaintiff seeks to have the whole trust property sold, and the proceeds applied to the payment of his single debt. The ground relied upon by him in argument is, that under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, a bill in equity will lie to. reach and apply in payment of a creditor’s claim an invention belonging to the defendant for which letters patent have not been issued, though application therefor has been made. This question, however, does not arise in the present case. The alleged debt is the personal debt of the trustees, and if they were the owners of the invention in their personal capacity, and if they had no property which could be come at to be attached, then the question might arise which has been argued. But the invention is held in trust, and is trust property. Different rules apply to such a case from those which are applicable to a bill brought to reach and apply a debtor’s property under the statutes.

There is a further question, which has not been touched upon in argument, namely, whether under the St. of 1887, c. 888, the plaintiff is entitled in this suit to have a personal judgment against the trustees for the amount of his claim, if claim he has. Since this question has not been presented to us, we do not consider it; leaving the plaintiff to seek this remedy, as also to ask for an amendment changing his proceeding into an action at law, if he is so advised, in the Superior Court. Unless this is done, the order must be,

Decree affirmed.