45 N.H. 429 | N.H. | 1864
The notes sued in this action were given on the sale of goods attached by the plaintiff Haynes in suits against Jackson; and Benning W. Sanborn resists payment of the balance, on the ground that part of the goods attached and sold was covered by a mortgage to him, and another part by a mortgage to Peter Sanborn; and he contends that the remainder of the money due on the notes should be applied on these mortgages, and not on the executions issued on the judgments recovered in the suits in which the goods were attached in mesne process.
The case shows that Howe, for himself and the Savings Bank, and Benning W. Sanborn brought suits against Jackson, delivered the writs to Haynes, the officer, and directed him to attach all the goods, and the attachments were made accordingly. Afterwards other creditors of Jackson attached the same goods subject to these prior attachments.
It is said in argument that Sanborn, inasmuch as his was not the first attachment, but second to Howe’s, is not responsible for the original attachment and cannot therefore be held to have waived his claim under the mortgage by his attachment. But Howe and Sanborn, as the case shows,consulted together and had their writs made before they took their mortgage, and they had their mortgage made running to themselves jointly. So far they acted together on a mutual understanding, and the writs, which they procured together, were served by their direction before any other attachments were made. They went on with their suits and attachments, recovered judgments, delivered their executions to the officer who made the attachments, and had them satisfied out of the goods attached. The report of the facts found by the court states that they placed their writs in the hands of the officer and directed him to attach the goods. It is too plain for doubt or cavil that they united in all measures taken for their security before the attachment, and that the attachment was their joint and concurrent act.
In the first place, with regard to the mortgage of Benning W. San-born : He must be held to stand on the same footing as if he alone had
If Sanborn had a valid mortgage he might have asserted his title as mortgagee by taking and holding possession of the goods and disposing of them under his mortgage. But when he attached the mortgaged property he put it out of his power and control, and placed it in the custody of the law. He thereby made it liable to subsequent attachment by other creditors. While it thus remained, by his direction, on his'- writ and process, in the hands of the officer and in the custody of the law, he could not interfere at all with the property as mortgagee. Nor could he make any complaint, nor maintain any suit against subsequent attaching creditors, nor against the officer who made the subsequent attachments ; for it was the right of the creditors and the duty of the officer to make the subseqent attachments. It is quite plain that the two remedies by attachment and under the mortgage are inconsistent and cannot be pursued at the same time and together.
Where there are successive attachments of the same personal property the statute provides that it shall be held under the attachment for thirty days after judgments are recovered, and "shall be holden to the creditors in the order in which the attachments were made; and where, as in this case, the property attached has been sold on the writs before judgment,the provision of the statute is that the "proceeds shall be holden to pay the executions issuing in the actions in which the attachments were made, in the order in which they were made.” Comp. Stats. 473, secs. 35 and 36.
In this case Sanborn held on to his security by attachment, delivered his execution to the officer, and satisfied his judgment out of the goods attached. The subsequent attaching creditors, by the express provision of the statute, had the right to insist that the proceeds of the goods attached should be applied to their executions according to the order in which the attachments were made, and it was the duty of the officer so to apply them. Such being the law which regulates the rights of creditors who have made successive attachments of the same property, we are of opinion that a mortgagee of personal property, who attaches the mortgaged property, pursues his attachment to judgment and execution,. and satisfies his judgment out of the property attached, has waived his right to insist on the mortgage against subsequent attaching creditors, who have recovered judgment and seasonably placed their executions in the hands of the officer, to be levied on the property attached.
It is not easy to perceive what interest T. W. Sanborn, the purchaser of the goods, could have in the application of the proceeds. The subsequent attaching creditors were not parties to the writing signed by
With respect to Peter Sanborn’s mortgage, the case stands on different grounds. He has directed no attachment, but, on the other hand, he is not party to this suit, nor to the note. He is not here making any claim, nor does it appear that he has made any on the officer. If he had made such a claim, the officer, having endorsed the note to Brown, the plaintiff, cannot object that it should be paid to the endorsee according to his order. If Peter Sanborn knew of these attachments and assented to them, he would probably be held to have waived his mortgage as much as if he had directed the attachment himself.
Judgment for the plaintiffs on both notes for the balance unpaid.