Low v. Welch

• Decision Date: 28 February 1885
• Citation: 139 Mass. 33,29 N.E. 216
• Parties: LOW v. WELCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 33

29 N.E. 216

LOW

v.WELCH.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1885.

Bill in equity by Edward G. Low against Francis C. Welch to compel defendant, as assignee in insolvency of one James Gilchrist, to release to plaintiff a parcel of land of which Gilchrist held the legal title upon an implied trust in favor of plaintiff. Defendant demurred. Demurrer overruled.

F.I. Amory, for plaintiff.

J.L. Thorndike, for defendant.

HOLMES, J.

This is a bill in equity, brought to compel the assignee in insolvency of James Gilchrist to release to the plaintiff a parcel of land of which Gilchrist held the legal title. The defendant demurs. It appears by the bill that Gilchrist held the land upon an implied trust in favor of the plaintiff, who paid the whole consideration for the conveyance to him, but that no declaration of trust had been recorded; and the defendant contends that, as by Pub.St. c. 141, § 3, such a trust would not prevent a creditor who had no notice of it from taking the land on execution, it passed to him for the benefit of creditors as “property of the debtor which might have been taken on execution upon a judgment against him at the time of the first publication of the notice of issuing the warrant.” Pub.St. c. 157, § 46.

The question is not without difficulty, but we are of opinion that the plaintiff is entitled to prevail. The defendant concedes that, if the words “property of the debtor” stood alone, they would not extend to property in which he had no beneficial interest, but merely a bare legal title. This concession is just, and is required by the cases. It cannot be supposed, in the absence of any particular equity or special and overriding policy, that a bankrupt or insolvent law intends to throw all property to which the debtor may have a naked title into the hands of his creditors. Such has not been the course of legislation or decision. Sibley v. Bank, 133 Mass. 515, 517;Holmes v. Winchester, 133 Mass. 140;Chace v. Chapin, 130 Mass. 128;Faxon v. Folvey, 110 Mass. 392, 395.

But if “property of the debtor,” standing by itself, is to be taken in a popular, rather than a strict legal, sense, and means property in which the debtor is beneficially, and not merely technically, interested, there seems to be no reason to doubt that it means the same thing here; in other words, that it is not enough that the property might have been taken on execution upon a judgment against the debtor, unless it is also property in which he has a beneficial interest. The first two cases which we have cited contain the strongest intimations that this is the correct view. The decision in Bingham v. Jordan, 1 Allen, 373, was simply that the assignee was not one of the “parties” to an...