This is a bill in equity, brought by a mortgagee of personal property, against the assignee in insolvency of the mortgagor and a prior mortgagee. It alleges that the conditions of both mortgages are broken, and that the whole amounts secured by them are due; that the first mortgagee has
Upon these allegations, the court clearly has jurisdiction, and that jurisdiction is not defeated by the facts set up in the answer, and proved by the evidence, that the assignee had sold the property, and, at the time of the commencement of the suit, held more than sufficient of the proceeds to pay both mortgages. If these facts had been known to the plaintiff, and if, in consequence of them, he could have maintained an action at law against the assignee, it would have been for a different cause of action from that set up in the bill, and could not, without the plaintiff’s election, have deprived him of his rights and remedies as mortgagee. Certainly the case of jurisdiction shown by the bill cannot be defeated by the disclosure at the hearing of wrongful acts of one of the defendants, which had exposed him to an action at law.
The assignee in his answer alleges that both mortgages are void as to him, as preferences under the provisions of the insolvent laws. Gen. Sts. c. 118, §§ 89, 91. The case comes to us by appeal from a decree entered by a single justice. Upon examination of the evidence, we think that it sustains the findings of the justice that the first mortgage was void against the assignee as a preference, and that the plaintiff’s mortgage is valid. If the mortgagor in that mortgage gave and used it in order to effect a preference, and if the agent of the plaintiff, who procured
As it appears that the assignee has sold the mortgaged property, and has money in his hands of the proceeds of the sale more than sufficient to pay both mortgages, he can be ordered to pay to the plaintiff the amount of his debt seemed by the mortgage. Decree affirmed.