majority">Gilchrist, J.

The supposed trustee had received, of the defendant sundry sums of money, which, together with several small notes payable to the defendant, which he had also received, amounted to $159.87. These he held as security for the payment of a note given to him by the defendant on the 7th day of July, 1842, for $600, the consideration of which he said was cash. There had *412been a judgment recovered upon this note, and upon a settlement between the trustee and the defendant, made a short time before the disclosure, there was due to the former, as he affirmed, $612.68.

To secure this balance, the defendant 'executed deeds conveying to the trustee several parcels of land, as to which there was a verbal agreement, that, after the payment of the debt, the balance of the proceeds of the land should be paid over to the defendant.

It also appeared that the trustee had received certain harnesses of the defendant, but the price of these was carried to the credit of the latter in the account referred to.

It also appeared that the farm upon which the defendant had lived for many years had been conveyed to the trustee, a part of it in December, 1833, and the remainder in April, 1834, by the parties who then owned it, and that some of the payments had been made by a receipt against one of the grantors, which the defendant transferred to the trustee : That the defendant himself had made one or two small payments to the grantors directly; but that all these payments, as well as the receipt, had been credited to the defendant in the account that has been mentioned, and that the defendant was charged in that account for rent of the farm from year to year.

In the same account he was credited for stone-wall built upon the farm, for painting the buildings, and other work done on the house, although the disclosure showed that these improvements had been executed by the defendant without orders from the trustee, and that he had never brought in his bill for them until the settlement that has been named.

If we were at liberty to draw our own inferences from some of the facts disclosed by the trustee, and to disregard what he himself has affirmed concerning the true state of things between himself and the defendant, we might,.perhaps, arrive at a different conclusion from the *413one which we are constrained to form in this case. But the plaintiff has called on the trustee to state the facts, and must abide by those statements. The trustee cannot be charged upon his answer, unless his answer contains matter to charge him, and does not contain matter sufficient to discharge him.

It certainly seems very extraordinary that the defendant should have paid a considerable portion of the price of the farm, and yet should be paying rent for it. It seems also extraordinary that he should repair the buildings, paint the house and build wall without any directions from the pretended and ostensible owner, and that the expense of these improvements should be allowed in the account by the owner, with apparent facility. Yet such are the facts, according to the only evidence that the case affords us, and such wo are bound to conclude the facts to be. The trustee treats these various sums paid by the defendant, either directly or indirectly, toward the purchase of the farm, as if they had been accommodated and advanced to himself. They are credited in the account which he says was settled, and so have been fully accounted for.

The harnesses also appear to have been settled for in the same way, although there may have been circumstances connected with the delivery of those goods that should render the precise aspect which the trustee has given to the transaction, less probable than some different hypothesis might seem.

The notes and cash, amounting in his hands to $159.87, ought, perhaps, to have been indorsed upon the note which they came into his hands to secure ; or the amount ought to have been passed to the credit of the defendant on settlement. But it can make apparently no difference to the parties that the business did not assume that form, for we are bound by the statement of the trustee that not only this money but the four parcels of land *414are in the hands of the trustee for the purpose of security, as he terms it, of the balance due on the settlement. That is, the money goes to reduce the balance, and the land to secure the remainder in the manner the trustee has desci’ibed.

There appears to be no ground for charging the trustée, but there is evidencé upon which he may be visited with costs, as provided by the Revised Statutes, chapter 208, section 34. From the disclosure, it appears that he took from the defendant absolute deeds of the four parcels of land, but with a verbal agreement, contrary to the force and effect of the deeds, which was, that the trustee should hold the land for the benefit of the defendant, to be sold to pay his debt, and then the money arising from the sale to be paid over to the defendant. In short, the land, though sold to the trustee, was by their secret agreement the defendant’s still. This is a fraud upon the creditors of the defendant. The trustee is a party to it, and, therefore, according to the statute referred to, taxable with costs.

Trustee chargeable with casts.

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