Goulding v. Hair

133 Mass. 78 | Mass. | 1882

Morton, C. J.

The statutes provide two modes in which a creditor of a mortgagor may make an attachment of mortgaged personal property. He may attach it in the usual form, as if it were unincumbered, provided that he pays to the mortgagee the amount for which it is liable, within ten days after due demand is made upon him. Or, when the property is in the possession of the mortgagor, he may attach it as if it were unincumbered, and summon the mortgagee as trustee in the same action. Gen. Sts. c. 123, §§ 62-71. Pub. Sts. c. 161, §§ 74-83.

If the last-named course is adopted by the creditor, the mortgagee is required to appear and submit himself to examination touching the consideration of his mortgage and the amount due thereon, and the creditor may, if he so elect, require the question of the validity of the mortgage to be tried by a jury. If the mortgagee fails to appear and is defaulted, he is estopped to set up the validity of his mortgage, and cannot maintain an action against the attaching officer for a conversion of the mortgaged property by a levy of the execution thereon. Flanagan v. Cutler, 121 Mass. 96. On the other hand, if he appears^ and the attaching creditor sees fit to discontinue against him, or he is discharged, the attachment is thereby dissolved. Martin v. Bayley, 1 Allen, 381. Hayward v. George, 13 Allen, 66.

In the case before us, the plaintiffs held a valid mortgage upon the stock in trade and fixtures of one Jordan. One Bassett, a creditor of the mortgagor, who was in possession of the mortgaged property, caused it to be attached by the defendant, and the mortgagees to be summoned as trustees under the Gen. Sts. c. 123, § 67. The mortgagees appeared and filed a general answer that they had no goods, effects or credits of the defendant Jordan in their hands or possession. They were afterwards discharged by the court. Although the answer in this form was irregular, yet, by appearing and answering, they submitted themselves to examination by the court, or by the plaintiff in that suit. It was the right of the plaintiff to ask such questions as he saw fit touching the consideration of the mortgage and the amount due thereon. If he wished to dispute the validity or amount of the mortgage, it was his duty, in the exercise of proper diligence in pursuing the remedy he had chosen, to examine the trustees. His failure to do so, and the fact that he made no objection to the discharge, was equivalent to a discontinuance as to the trustees, and the court rightly ordered that they be discharged. Such discharge put an end to the creditor’s right to pursue the remedy he had adopted, and worked a dissolution of his attachment. Upon such dissolution, the mortgagees became entitled to the money, which, after the sale, the defendant held in place of the attached goods, and may maintain this action therefor, unless there is some other defence.

But the defendant contends that the action is prematurely brought because there was a second attachment upon the goods which is still existing, the suit in which it was made being still pending. The facts are, that while the defendant held the goods under the first attachment, namely, on July 31, 1880, .other creditors of Jordan made a second attachment of the .mortgaged property and summoned the plaintiffs as trustees. This suit is still pending. But it appears that on August 30, .1880, the goods having in the mean time been duly sold on mesne process under the statute, and Bassett having obtained judgment .against Jordan, the defendant levied Bassett's execution upon the money in his hands and paid it over to the attorney of Bassett. These acts of the defendant put an end to and vacated the second attachment, and it cannot now be set up as a defence in this suit. Boynton v. Warren, 99 Mass. 172. We are therefore ■of opinion that the Superior Court rightly ruled that, upon the facts agreed, the plaintiffs were entitled to maintain this action.

Judgment for the plaintiffs affirmed.