8 Mass. App. Ct. 147 | Mass. App. Ct. | 1979
These appeals involve the question who among three defrauded parties is entitled to the proceeds of a check.
There appears to be no dispute as to the facts, and they are taken from the complaints of the plaintiffs and the intervener and from the answer of the trustee. See Musolino, LoConte Co. v. Costa, 304 Mass. 253, 255-256 (1939).
The check was for twelve thousand British pounds and was given as advance against the future sale of the prints. It was drawn on the National Westminster Bank Ltd. (Westminster) and was deposited for collection by Moskaluk in the State Street Bank and Trust Company (State Street) on April 26, 1977. State Street forwarded the check to Westminster, requesting that it credit the proceeds to State Street’s account at State Street’s correspondent bank in England under direct telex advice to State Street in Boston. The proceeds were credited to State Street’s account in its English correspondent bank on April 29, 1977.
Apparently as a result of an F.B.I. investigation, suspicion as to the ownership of the prints arose, and Sotheby and State Street agreed on May 4
On the same date, May 6, First National and Good-speed’s brought separate actions against Moskaluk and served State Street as trustee in order to attach by trust
Trustee process is a statutory procedure under G. L. c. 246 which enables a creditor to attach goods or credits of his debtor which are in the hands of a third person. Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208, 209-210 (1899). To be attached the goods or credits have to be due to the defendant absolutely and without contingency. G. L. c. 246, § 24. If a third person claims such goods or credits, as did Sotheby here, he is permitted to intervene as a claimant “in order to determine his title” to them. G. L. c. 246, § 33. The claimant may assert either legal or equitable rights to the goods or credits in the possession of the trustee, and if he shows that such goods or credits belong to him or that he has an equitable interest in them, he can hold them against an attaching creditor. Meteor Prod. Co. v. Societe D’Electro-Chemie et D'Electro-Metallurgie, 263 Mass. 543, 548 (1928). R.H. White Co. v. Lees, 267 Mass. 112, 115 (1929). Levin v. Lerner, 290 Mass. 294, 298 (1935). Georgeopoulos v. Georgeopoulos, 303 Mass. 231, 233 (1939). This is so because, in the absence (as here) of any applicable recording statute, an attaching creditor has no better footing than his
Sotheby, as intervener, first argues that the court below erred in charging State Street as trustee because there was no final settlement of the check and there was no credit due Moskaluk without contingency under G. L. c. 246, § 24, at the time of service of the trustee. The plaintiffs argue the contrary. However, we do not need to decide the questions underlying that dispute
Sotheby argues that it has such superior claims. We agree. Moskaluk acquired Sotheby’s check as an advance on goods which were stolen, and the proceeds of the check were identified. Sotheby has, therefore, an equitable lien on such proceeds. National Mahaiwe Bank v. Barry, 125 Mass. 20, 24-25 (1878). Morin v. Kirkland, 226 Mass. 345, 348 (1917). See Thaxter v. Foster, 153 Mass. at 153-154.
The judgments are reversed and the actions remanded to the Superior Court for further proceedings not inconsistent with this opinion.
So ordered.
Unless otherwise specified, all dates mentioned hereafter refer to the year 1977.
In his memorandum of decision the judge, based on State Street’s answer, held that on the date the trustee was served, State Street had in its possession and control the proceeds of Sotheby’s check which were due Moskaluk without contingency. He also held that the "contingency” created by Sotheby and State Street on May 4 was a gratuitous undertaking.
We do not, therefore, discuss the implications of G. L. c. 106, § 4-213 (4) (a), or of § 4-103(1), or the effect, if any, of the agreement of May 4, 1977, between State Street and Sotheby.