90 Mass. 273 | Mass. | 1864
A mortgage may be valid, having a stipulation in it for securing future advances and liabilities on the part of the mortgagee. If such advances have been made or liabilities assumed before other interests have legally intervened, they will be secured by the mortgage. But after a creditor has attached the debtor’s interest in the property mortgaged, and the mortgagee has been duly summoned as trustee of the mortgagor, no new and independent indebtment, either by moneys advanced, services rendered or liabilities assumed, will defeat the lien by attachment, or have a priority to the same under the mortgage. It is said, on the part of the trustee, that he had no sufficient notice that he was summoned as trustee by reason of his relation to this property as mortgagee, until the filing of interrogatories pending his examination as trustee, and therefore that he is not to be limited in his security, by force of the mortgage, to demands and liabilities that had been created prior to the service of the trustee process upon him. But we think this position not tenable. The case of Hobart v. Jouvett, 6 Cush. 105, is strongly to the point that wffiere the mortgaged property is actually attached and taken, and the mortgagee summoned as trustee, he is legally notified of the claim of the attaching creditor upon the mortgaged property, and he cannot afterwards change the state of the same by new debts and liabilities, to the prejudice of the attaching creditor. In that case it was held that, after being thus summoned as trustee, he could not legally give the notice and proceed to foreclose the mortgage, to the prejudice of the attaching creditor. If so, it would seem to be quite clear that he could not add a new and distinct indebtedness for services rendered subsequently to the attachment, and in matters wholly arising after the attachment.
In the opinion of the court, the trustee cannot hold the property as security for claims accruing after said attachment op^ service on him.
