Johnson v. Collins

116 Mass. 392 | Mass. | 1874

Morton, J.

The plaintiff’s attachment, having been made more than four months befort the commencement by the defendant of proceedings in bankruptcy, was not dissolved thereby. The lien created by it remains a continuing security for any judgment which the plaintiff may obtain in the suit in which it was made. It has been repeatedly decided that, in such a case, the court in which the suit is pending should render a qualified judgment, to be enforced only against the property attached, and not against other property or the person of the defendant. Bates v. Tappan, 99 Mass. 376. Bosworth v. Pomeroy, 112 Mass. Stockwell v. Silloway, 113 Mass.

The rules of law, by which the amount for which the plaintiff is entitled to judgment is determined, are not affected by the bankruptcy of the defendant. In an action to recover damages for a breach of the covenant in a deed against incumbrances, where the incumbrance is one which can be removed by the grantee, he may recover the amount fairly and justly paid by him for the removal of such incumbrance, not exceeding the value of the estate, although he pays it after the action is commenced. Leffingwell v. Elliott, 10 Pick. 204. Brooks v. Moody, 20 Pick. 474. Norton v. Babcock, 2 Met. 510. In the case at bar there were two incumbrances, the taxes assessed for the year 1870, and an attachment in favor of one Holán, both of which the plaintiff removed by paying them, in good faith, before the trial, but after the commencement of the suit.

Upon the principles stated above, the Superior Court correctly ruled that the plaintiff was entitled to recover the amount of both items thus paid, as the measure of his damages for the breach of the covenant against incumbrances, and that a special judgment therefor should be entered to be enforced against the property attached. Exceptions overruled.