Langdon v. Thompson

As the assignee of Gaines, under a general -voluntary assignment for the benefit of creditors, the plaintiff was the trustee of an express trust. Gen. St. c. 43, § 11. As .such he held the legal title, and all the equitable interest of the assignor in respect to the property in question. Gen. St. c. 43, § 16. He was, therefore, the real party in interest, within the meaning of Gen. St. c. 66, § 26, and could maintain this action in his own name, without joining the persons for whose benefit it was prosecuted, and without disclosing his .representative character. Gen. St. c. 66, § 28. Butterfield v. *512Macomber, 22 How. Pr. 150. The assignment was simply the-evidence of his title, and it was competent to introduce it as-such on the trial, under the general averment of title in the-complaint.

The provision in the assignment, authorizing the assignee,. “for the purposes aforesaid, or any part thereof, to make,. constitute and appoint one or more attorneys under him, and. at his pleasure to revoke the same,” only gave to the assignee, in express terms, an authority which he would have had without it, to appoint agents and attorneys to assist in the collection of debts, and in the transaction of other business of a. like character, that could be as well done through the agency - of others as by himself in person. It gave him no authority to delegate any of his trusts, nor is any such authority found in any provision of the assignment. The use of the words “successors in trust,” in the granting and habendum clauses of' the assignment, is equally unobjectionable. Such phrase referred to such persons as might lawfully succeed the assignee, in case of resignation, removal or death, but it gave to the assignee no power to select his successor. Nye v. Van Husan, 6 Mich. 329; Casey v. Janes, 37 N. Y. 608; Mann v. Whitbeck, 17 Barb. 388; Van Dine v. Willett, 38 Barb. 319; Maennell v. Murdock, 13 Md. 164.

No order or judgment upon the disclosure has ever yet been entered by the court, under the opinion or decision of the-judge, fixing the status of the property which was attached by the service of the garnishee summons, or the rights of the parties to the garnishee proceedings in respect thereto. That decision was simply an authority for the entry of an order ■ and judgment, in conformity with the views therein expressed. Ryan v. Kranz, ante, p. 362. Until the rendition of such judgment, the garnishee is not charged in respect to the attached property, nor can it be delivered over to the officer • holding, the execution against the defendant in the original action, or seized by him on such process, by virtue of any prior-lien, inchoate or otherwise, created thereon under the gar*513nishee proceedings. Where no bond for the release of the attached property is given by the defendant, under the provisions of Laws 1871, c. 67, (Gen. St. 1878, c. 66, § 198,) the statute authorizes no interference with such property or its possession, prior to judgment against the garnishee, except upon application under Gen. St. c. 66, § 165, and order thereon requiring it to be brought into court, or delivered to a receiver appointed by the court. See Gen. St. c. 66, §§ 160, 161, 164, 165. Inasmuch, therefore, as the appellant sheriff had no legal right to seize and sell the property in question under the execution against the defendant, by virtue of any prior lien created thereon by the garnishee proceedings, he can only justify the act on the ground that the defendant had a leviable interest in the property, irrespective of such proceedings. At the time of the levy, all his interest therein having been theretofore transferred to the plaintiff, the levy was unauthorized, and the defendant was a trespasser in making it.

Order affirmed.