184 Mass. 547 | Mass. | 1904
This is an action of tort for the alleged conversion of certain goods of which the plaintiff was a mortgagee. The defendant justifies his interference with the property by saying that he attached it as a constable under a writ against the mortgagor, and subsequently sold it upon the execution issued in the case. The contentions relied on by the plaintiff are two: first, that inasmuch as the writ was not a trustee process and the attachment was made under the R. L. c. 167, § 69, and the amount demanded by the plaintiff as due him under the mortgage was not paid within ten days, it is not open to the defendant to contest the validity of the mortgage; second, that inasmuch as the defendant did not return the execution into court within sixty days, nor until after he first offered it in evidence
It is true that an attaching creditor or officer who does not' pay the amount due to a mortgagee of attached personal property, in accordance with the R. L. c. 167, § 69, loses his rights under the attachment. It is also true that an attachment may be made by trustee process under the R. L. c. 167, § 74, and that a method is provided for contesting the validity of the mortgage in the suit without a preliminary payment by the creditor' or officer, and that this is sometimes a convenient mode of determining the rights of the parties. Jackson v. Colcord, 114 Mass. 60. McDonald v. Faulkner, 154 Mass. 34.
But the provision of § -TO of this chapter, that if the amount due is not paid or tendered within ten days after the mortgagee’s demand, the attachment shall be dissolved, relates to a title under a valid mortgage, and we have been referred to no case in which it is held that this result will follow if the mortgage is void, or is voidable by attaching creditors. To give such an effect to a fictitious or invalid mortgage would be likely to work so great injustice that nothing less than plain provisions to that effect would warrant us in sustaining the plaintiff’s contentions. So far as we are aware, this section has always been construed by courts at nisi prius as it was construed at the trial of this case. In Codman v. Freeman, 3 Cush. 306, 311, Chief Justice Shaw, in speaking of a demand of this kind, said, “If the officer, after such notice, persisted in holding the goods, he did it at the peril, either of proving the mortgage invalid and void, or, as against the mortgagees, the plaintiffs, of being chargeable as a trespasser.” We are of opinion that the defendant ■ properly might contest the validity of the mortgage.
It is well settled that a title to real estate, acquired under a judgment and execution, cannot be established unless the execution is returned into court, but as the statute does not fix the time within which this must be done, the return will be effectual if it is made at any time before the execution is put in evidence in the case in which it is relied upon. Prescott v. Pettee, 3 Pick. 331. Walsh v. Anderson, 135 Mass. 65. Firth v. Haskell, 148 Mass. 501. It is equally true that an officer cannot justify an
We do not find it necessary to decide the question, for if we should assume that the defendant could not justify without returning his execution, we are of opinion that for this purpose he could return it any time before it was received in evidence. There is no good reason why this part of the rule which applies to the return of executions levied upon real estate should not also apply to executions levied upon goods and chattels. The defendant in this ease returned the execution a long time after the levy, but before the paper was put in evidence. This objection cannot avail the plaintiff.
Exceptions overruled.