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A number of the goods or chattels which the defendant is restrained from disposing of he acquired by purchase and not by actual trade or exchange, after selling the one originally included in the mortgage without the consent of H. But the chattels purchased and now claimed by the complainant, in fact, take the place of the ones sold and which were in the mortgage. These chattels were mortgaged to others, who are joined in this suit as defendants, and who ask to have the restraint of the injunction removed from them. They say that the chattels thus acquired, that is by sale, and purchase, are not included in the terms, by trade or exchange. They further say that had the parties intended to include chattels so acquired they would have covenanted that "after-acquired property" should be covered by the mortgage.

It will be seen that this argument is too broad, since such phrase would include not only any property which may have been acquired by way of substitution but all other goods and chattels. Hence, I am called upon to reject this view.

Again, it is said that the words "trade" and "exchange," exclude all property obtained by purchase even though it be of the same kind and purchased to take the place of the chattel previously sold and covered by the mortgage. My understanding rejects this view. To my mind it is plain that the parties intended to include in the mortgage whatever the mortgagor acquired in the place of the article or chattel which he disposed of, and to limit the scope of the mortgage to those things. The words were used by way of limitation. Nothing was to be included except those things which were intended to take the place of the chattel disposed of. I do not mean to say that, in my judgment, the parties did not intend that, if the mortgagor gave a cow for a horse, the horse would not be included in the chattel mortgage, but simply express it as my opinion that in case of the sale of an article and the purchase of another of the same kind, it was intended that the one so purchased should be subject to the mortgage. This, certainly, is different from the covenant which brings in all after-acquired property. Plainly this was not intended. And I think the words "trade and exchange" were used by the parties in contradistinction to the words. "after-acquired property." For example, if, before there had been any sales of the articles enumerated, the mortgagor had purchased others of the same kind, or at any other time, while the list was complete, had made such purchase, it seems to me that in such case such articles so purchased would not have passed to the lien of the mortgage. And these considerations lead me to the conclusion that the motion to modify the injunction ought to be denied.

Let the costs abide the event of the suit.

PIDCOCK V. MELICK.

January 18, 1887.

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PLEADING-FORECLOSURE-SEPARATE ANSWER OF WIFE-REV. N. J. 638, §§ 10,11. In an action to foreclose a mortgage, the wife of the mortgagor answered separately without leave of court. Held, that her answer should be stricken out on motion.

The former practice in this respect has not been changed by the statute. Wilson v. Herbert, 12 Vr. 456, and Powers v. Tuttle, 13 id. 445, distinguished. On motion to strike out answer. The opinion states the case. Mr. Hulsizer and Mr. Shipman, for motion. Mr. Bergen, contra. BIRD, V. C. This bill is filed to foreclose a mortgage. It is alleged that Melick and his wife joined in the execution of the mortgage. The motion is to strike out both answers. One of the grounds upon which the motion to strike out the answer of the wife rests is, that she has answered separately, without the leave of this court. The counsel for the wife admits that the former rules respecting the practice in this particular required the wife to obtain the leave of the court before she could file her separate answer, but insists that the recent statutes respecting married women - Rev. 638, § 10 and 11- have removed this disability, citing in support of this insistment, Wilson v. Herbert, 12 Vr. 456, and Powers v. Totten, 13 id. 445. The cases were at law, and respecting the debts which the wife had contracted. In the case under consideration the alleged debt is that of the husband, the wife having joined in the execution of the mortgage given as a security for that debt. It being admitted that in equity a married woman, formerly, could not answer separately without leave, it must be ascertained whether the statute has altered the practice in this respect. Let us look at the statute and see how far it reaches. It says that the husband shall not, by reason of his marriage, be liable for the debts of his wife, but that she shall be liable to be sued in her own name separately, and her separate property made liable as though she were unmarried.

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It also provides that she may maintain an action in her own name and without joining her husband, for all breaches of contract, and for the recovery of all debts and property which by the act is declared to

be hers.

The present suit is not brought to recover a debt of the wife, nor is any right, title or interest in property of any kind which the act declares to be hers, in any wise involved. She is defendant in the present case because she is the wife of the alleged debtor, the mortgagor, and as such wife has an interest in the equity of redemption. I conclude, therefore, that as to such case the former practice has not been changed by the statute either directly or by implication, and that the wife cannot answer separately without the leave of the court.

This view renders it unnecessary for me to consider, at this time the questions raised as to the sufficiency of the husband's answer, for if, upon application, it should be ordered that the wife join with her husband in answering, then the question will be presented whether the present answer, filed by him, must not, of necessity, fall.

The motion to strike out the answer of the wife must prevail, with

costs.

SUPREME JUDICIAL COURT OF MAINE.

FROST V. LIBBY.*

February 3, 1887.

EXECUTOR AND ADMINISTRATOR-FRAUDULENT CONVEYANCE BY DECEASED. The executor or administrator of an insolvent estate is the proper person to sue for property conveyed by the deceased in fraud of creditors.

Whether one or more creditors could maintain such a suit for the benefit of all the creditors, if the administrator should decline to sue, the court does not decide.

But a portion of the creditors cannot maintain such a suit for their own benefit.

Creditor's bill. The opinion states the case.

Frank & Larrabee, for plaintiff. Holmes & Payson and Arden W. Coombs, for defendants.

HASKELL, J. The joint bill of two creditors of a deceased debtor, whose estate was represented insolvent in the probate court against an alleged fraudulent grantee of the debtor and his administrator, to recover certain land supposed to have been voluntarily and without consideration conveyed by the debtor in his life-time to the respondent grantee, in fraud of creditors.

The executor or administrator of an insolvent estate is charged by law with the collection and distribution of all the assets of the deceased, including property conveyed by the deceased in fraud of creditors; and to accomplish this result he may have the aid both of courts of law and of equity, even where the deceased, if alive, could have no relief. The legal representative of an insolvent estate is a trustee for the various persons interested in the distribution of the estate, according to their respective legal and equitable interests. Caswell v. Cas well, 28 Me. 235; Pulsifer v. Waterman, 73 id. 233; McClean v. Weeks, 61 id. 277; 65 id. 411; Reed v. Reed, 75 id. 264.

Dicta in some of these cases indicate that the legal representative has the sole right to maintain an action or suit to recover assets for the benefit of an insolvent estate, even though he refuses to attempt their recovery; but whether upon tender of indemnity to the representative, followed by his refusal to sue in equity to recover estate conveyed by the deceased in fraud of creditors, one or more creditors may not maintain their bill to recover the same for the benefit of all creditors entitled to share in it, by making the representative a party respondent upon apt averments, thereby virtually making the suit one in his behalf, it is unnecessary to now decide, for the bill does not aver any refusal of the respondent administrator to perform his full duty in recovering the property, said in the bill to have been conveyed in fraud of creditors.

It is clear, however, that the present bill cannot be maintained, if *See 7 East. Rep'r, 348, 438; 1 id. 504; 24 Hun, 467.

for no other reason, for want of equity, inasmuch as it seeks a preference for the orators over other creditors of like merit.

In the settlement of insolvent estates the aim of the law is "to produce an equitable pro rata distribution of all that remains of the dead man's property or effects; and to best serve this purpose, a recovery by the legal representative or by creditors in his behalf, of assets that ought to be distributed, is the most efficacious method, and the only one that commends itself to a court of equity. If the orators would have individual relief, let them seek it in an action at law, and not ask a court of equity to give them an inequitable preference over other creditors of equal merit with themselves.

If the debtor were alive, the orators could not maintain this bill against the fraudulent_grantee, inasmuch as they had not exhausted their remedy at law-Howe v. Whitney, 66 Me. 17; Baxter v. Moses, 77 id. 465; s. c., 2 East. Rep'r, 71- and after he is dead why should they have equitable relief that they could not have in his life-time? Nor can the bill be maintained under the act of 1876 as an equitable garnishee process, for neither the allegations in the bill nor the parties to it bear proper relations to a suit of that kind. Donnell v. Railroad, 73 Me. 567.

Exceptions overruled.

Bill dismissed, with costs on the exceptions.

PETERS, Ch. J., WALTON, VIRGIN, LIBBEY and EMERY, JJ., concurred.

BUNKER V. BARRON.

February 5, 1887.

MORTGAGE - DEED WITH DEFEASANCE.

A deed and an instrument of defeasance, under seal, executed at the same time as a part of the same transaction and between the same parties, constitute a mortgage.

PAYMENT GIVING OF NOTE- PRESUMPTION.

The general rule, that a negotiable note given for a simple contract debt is presumed to be in payment of the debt, is overcome by showing that such was not the intention of the parties, as where it would deprive the creditor taking the note of the benefit of mortgage security.

Nothing but the payment of the debt or its release will discharge a mortgage. J. J. Parlin, for plaintiff. D. D. Stewart and A. H. Ware, for defendant.

FOSTER, J. The plaintiff claims the premises in question under a mortgage to him from William Quint, dated September 12, 1874. While the tenant in possession does not claim to own the premises, or any part thereof, his defense is based on a title, earlier in point of time, in William Barron, his father, whose agent or servant he is in the occupation and possession of the premises. That title originated in this way. On January 7, 1868, William and Draxcy Quint, and Mary Quint, their mother, conveyed by warranty deed to John S. Paine, who on the same day and as a part of the same transaction, back gave a bond to these parties, therein agreeing to reconvey the premises, being the farm where they then lived, upon payment to him by them of the

sum of $300 in annual payments of $100 each in three, four and five years from date, and also all other debts which the said Quints should thereafter contract with the said Paine. No notes accompanied these transactions. The bond was not recorded till May 26, 1876. November 7, 1874, the Quints obtained $225 more from Paine, and William and Draxcy on that day conveyed to him by warranty deed another small parcel of land adjoining the home farm. February 1, 1875, in consideration of $100 paid by Paine, Lydia, the wife of William Quint, released her right of dower in the home farm. At the same time William Quint gave Paine his note for $872.34, and Paine gave him back a bond therein, agreeing to convey to him the farm and the other parcel named upon payment by said Quint of the said note.

No part of this note has ever been paid. Paine conveyed the premises, and his title has come to William Barron, the defendant's father, under whom he is in possession.

The plaintiff claims that the deed of January 7, 1868, to Paine and the bond back to the same parties constituted a mortgage of the premises, and that the subsequent transactions of February 1, 1875, between William Quint and Paine extinguished the mortgage, thereby letting in the plaintiff's title upon which he bases this action to recover possession of the premises.

While we are of the opinion that the deed and instrument of defeasance executed at the same time, and between the same parties, constituted a mortgage, we feel confident that the same was neither paid nor extinguished by what took place between William Quint and Paine, February 1, 1875. At that time to be sure every thing due was reckoned up and embraced in the note of $872.34. This included the amount specified in the first bond, the several notes which had been given from year to year as interest on that amount, the sum of about $225 lent the November before, together with interest on all these sums up to the time the note was given. And we may well assume that it contained all the other indebtedness from the Quints contracted between the time when the first bond was given and the time when the note was dated, inasmuch as the first bond provided for the payment of all other debts, in addition to the specific sum therein named, which the obligees should thereafter contract with the obligor

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and inasmuch also as William Quint himself states that the note was given not only for the sum named in the first bond but for "all other indebtedness to said Paine from us.' His testimony is that the note was given in payment of all matters between the Quints and said Paine. The question is whether it was such payment as amounted to an extinguishment of the mortgage. Paine is dead and his testimony is not before us. The circumstances surrounding the transaction, taken in connection with the evidence in the case, have an important bearing upon the question, and afford sufficient light by which we are enabled, we think, to judge correctly of the intention of the parties relative to that transaction.

It is the well-settled rule of law in this State, as also in Vermont and Massachusetts, that a negotiable note given for a simple contract debt is prima facie, to be deemed a payment or satisfaction of such debt.

VOL. IX.-110

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