188 Mass. 70 | Mass. | 1905
The defendant’s first contention is that the possession which the plaintiff got by taking the furniture from Manchester was wrongful, and that a wrongful possession will not support an action of trover. His argument in support of this contention is that after Manchester had been served with the trustee writ the furniture held by her was in custodia legis,
That argument rests on the assumption that the mortgagor’s interest in the furniture was attached by serving the trustee writ on Manchester. But that assumption is incorrect. The interest of a mortgagor in mortgaged personal property cannot be attached by trusteeing a bailee of that property who holds for the mortgagor. The only way in which the mortgagor’s interest in such property so situated can be attached is by attaching it as if it were unincumbered on a writ of summons and attachment under R. L. c. 167, § 74.
Before St. 1829, c. 124, the mortgagor’s interest in personal -property under mortgage could not be attached on mesne process, Badlam v. Tucker, 1 Pick. 389, or taken on execution. Lyon v. Coburn, 1 Cush. 278.
By St. 1829, c. 124, two methods were provided for reaching the mortgagor’s interest in mortgaged personal property by way of mesne attachment. One was, where the mortgaged personal property was in the hands of the mortgagee, to serve the mortgagee with a trustee writ. This is now re-enacted in R. L. c. 189, §§ 60, 61 and 62. The other method was to attach the personal property under a writ of summons and attachment as the property of the mortgagor, provided the person for whose benefit the attachment was made should first pay or tender to the mortgagee the full amount of the demand for which said property was mortgaged, following the suggestion made in Badlam v. Tucker, 1 Pick. 389, 399, 400. This method was changed in the Rev. Sts. c. 90, § 78, so as to allow mortgaged personalty to be attached as if it were unincumbered before the mortgage debt was paid, the mortgagee’s rights being preserved by a provision that the attachment should be dissolved if the attaching creditor failed to pay the mortgage debt upon a demand for it being subsequently made by the mortgagee. The making of a demand by the mortgagee for payment of the mortgage debt was further regulated by St. 1843, c. 72, § 3, and St. 1844, c. 148, § 1. These provisions are now found in R. L. c. 167, §§ 69-73.
A third method for reaching the mortgagor’s interest in mort
Unless one of these three statutory methods of attaching the mortgagor’s interest in mortgaged personal property is pursued, that interest cannot be reached on mesne process. No one of these was pursued in the case at bar. When the writ was first taken out the personal property was in the hands of a bailee of the mortgagor, and therefore could be attached only under a writ of summons and attachment as if unincumbered. In place of pursuing that method the plaintiff undertook to attach it by summoning the bailee in a trustee writ. It is only where the mortgaged personalty is in the hands of the mortgagee that the mortgagor’s interest can be reached by summoning the person having possession thereof as a trustee in trustee process. In the case at bar nothing was effected by summoning Manchester as a trustee, and the plaintiff’s right to take possession was in no way affected thereby. The defendant’s first contention wholly fails.
The defendant’s second contention is also without foundation, namely, that the defendant was justified by the special precept used on August 1, 1902. The special precept recites that the mortgaged property is in the hands of the mortgagor, but is mortgaged to the plaintiff, and directs the defendant to appear “ to answer such questions as may be put to him by the court, or by its order, touching the consideration of said mortgage.” Under it the defendant took possession of the property as unincumbered, and delivered a copy of the precept to the mortgagee. In other words, this special precept authorized an attachment in the third method mentioned above, now R. L. c. 167, § 74. But the validity of such an attachment depends upon the mortgaged property being in fact in the possession of the mortgagor. Drysdale v. Wax, 175 Mass. 144. Porter v. Warren, 119 Mass. 535. At the time this attachment was made in
The facts proved showed a conversion. Boynton v. Warren, 99 Mass. 172. Porter v. Warren, 119 Mass. 535. Duggan v. Wright, 157 Mass. 228.
Exceptions overruled.
