¶1The opinion of the court was delivered by
¶2The material question in this case is, whether, from the facts found the persons summoned as trustees should he adjudged chargeable. The jury have settled the point, that the real estate was conveyed to the trustees in fraud of creditors. Under the statute of 1797 it has been frequently decided, that a fraudulent grantee of lands, by reason of which fraud the conveyance is void against the creditors of the grantee, cannot, simply for that cause, be adjudged his trustee. The only inquiry, which can be an open question, is, whether the Revised Statutes have changed the law in this respect.
¶3Section thirty four of the present trustee statute [Rev. St. 194] provides, that if the person summoned as trustee shall have in his possession any goods, effects and credits of the principal defendant, *197which he holds by a conveyance, or title, that is void as to the creditors of the principal defendant, he may be adjudged trustee on account of such goods, effects and credits, although the principal defendant could not maintain an action therefor against him. There can be no pretence, that real estate can be brought within the statute, unless, indeed, within the term effects. Certainly it is not goods, or credits. It is not within the popular meaning of the term effects. That word, as ordinarily used, is understood to mean goods, moveables, personal estate ; and I am not aware, that the word effects has ever been defined by any leg al writer, as including real estate.
¶4The expression in the statute, “ which he (the trustee) shall hold by a conveyance, or title, that is void,” &c., may with propriety be applied to personal property, as well as to real estate, and of course is in no way decisive of the question. We cannot think it was the intention of the legislature to extend this section of the trustee statute, so far as to.include real estate. There seems tobe no occasion for such a statute. The land being of a fixed, immoveable character, might at any time, while the ostensible title remained in the fraudulent grantee, be levied upon by the creditors of the grantor; and I see no good reason, why these lands might not be levied upon by the other creditors of the grantor, even though we should adjudge the trustees chargeable in this suit. It would, in such an event, seem to need farther legislative provision, in order to quiet the trustees in the enjoyment of the property. Though, while sitting in the county court, I was inclined to this view of the subject, yet it was thought advisable to let the jury pass upon the character of the conveyance.
¶5The result is, that the judgment against the trustees is reversed, and judgment rendered, that the trustees are not chargeable, — and that they recover their costs.