Kennedy v. Nunan

A trust to receive the rents and profits of lands and pay them over was a familiar trust at common law, (36 lien. Vil!, 1 Cr. Dig. Tit. 12, chap. 1, sec. 12) and gave the cestui que trust an equitable estate in the lands. (4 Kent, margin, p. 310, note 5/1 Cr. Dig. Tit. 12, chap. 2: Story Eq. Jur. secs. 974, 974a, 975; Perry on Trusts, sec. 357, et seq.') And such equitable estate was subject to most of the incidents of a legal estate. In particular, it was descendable, devisable, and alienable.

Under our practice any interest in lands, legal or equitable, of the execution debtor may be sold on execution. (Code of Civil Procedure, secs. 548-688.)

The learned counsel for respondent cited, a number of au[328]thorities in the Court below, holding that the interest of a cestui qyie trust in lands is not leviable when others are also beneficiaries under the trust. (See Freeman on Executions, secs. 187 and 188.) There are many authorities to that effect in the various States, and others holding that no equitable interest, unless it be the interest of a fraudulent grantor, which, as to attaching creditors, is not deemed an equitable but a legal interest, can be reached by execution. But decisions of this character in the other States are no guide to the construction of our statute.

In most of the States, where equitable interests of any kind can be reached by execution, it is done under statutes similar in phraseology and effect to the Statute of 29 Charles II, chap. 3, see. 10, or else under the extra-territorial Statute of 5 George II, chap. 7, sec. 4, extending the provisions of the Statute of Charles II to the Colonies, and still held to be in force in some of the older States.

These statutes, as being an innovation upon the common law, have in general been strictly construed; and the reason for it is plain as “ A B C.” At the common law, no estate in lands other than leaseholds could be reached by execution. A fieri facias only ran against goods and chattels, including leasehold interests, and a levari facias against chattels and the rents and profits of lapds. The Statute of Westminster 2 subjected a moiety of the debtor’s lands to an elegit, until the debt was satisfied out of the rents and profits. But no equitable interest could be reached in lands by an elegit, nor in goods and chattels by a, fieri facias, because these were writs issued from Courts of Law, and these Courts did not recognize an equitable interest, and could not deal with it. It was a creature of equity, and could be reached and dealt with only in equity.