255 Mass. 270 | Mass. | 1926
On March 14,1925, one Cirace executed and delivered to the plaintiff a mortgage on certain personal property situated in the store of the mortgagor, to secure an alleged loan made to him by the plaintiff. The mortgage covered the stock of goods and all other personal property in the store and was duly recorded. On March 18, 1925, the defendants Caldarone and' Grillo brought an action against Cirace. The writ in this action was served by the defendant Sweeney, a deputy sheriff, who attached the property covered by the mortgage and placed a keeper in the store. On March 26, 1925, the plaintiff, by his attorney, delivered to Sweeney a letter notifying him that the property so attached was subject to a mortgage held by the plaintiff. The letter stated the amount due thereon and demanded that the attachment be removed or that the amount due on the mortgage be paid. This bill is brought to restrain the defendants from selling or otherwise disposing of the property, and for general relief.
It is alleged in' the answer that the plaintiff and Cirace
The findings that the mortgage was given for value and in good faith, and not to defraud creditors or to prevent the property being attached, and that Cirace was not insolvent on the date of the mortgage, were amply warranted upon the reported evidence. The letter delivered to the attaching officer was seasonable and sufficient notice of the amount due on the mortgage. It contained a statement of the principal sum, the date of the mortgage, the rate of interest, and a recital that “The entire mortgage remains unpaid.” Such statements enable computation to be made of the just and true account of the amount due. The letter is not invalid on the ground that the sum due as interest was not computed, Johnson v. Sumner, 1 Met. 172, Averill v. Irish, 1 Gray, 254, and the judge rightly ruled that it was sufficient demand to satisfy the provisions of G. L. c. 223, § 75. The statute expressly provides that if the amount due is not paid or tendered to the mortgagee within ten days after such demand, the attachment shall be dissolved and the property restored. Esson v. Tarbell, 9 Cush. 407.
As it is found that the property has been so withheld that
Ordered accordingly.