154 Mass. 34 | Mass. | 1891
In this case an attachment was made of personal property, and the mortgagee was summoned as trustee under the Pub. Sts. c. 161, § 79. Subsequently, on application by the plaintiff, the attaching officer, purporting to act under the Pub. Sts. c. 161, § 90 et seq., sold the attached property. The net proceeds of the sale were forty-four dollars and ninety-nine cents. The trustee, as appears by his answers to the plaintiff’s inter
A preliminary objection has been suggested, that the exceptions are premature, and that the proper time to raise the questions argued will be when the mortgagee brings an action for the conversion of the mortgaged property, if he shall see fit to do so hereafter. But this cannot be. If the order of the court stands, it is an adjudication of the matters passed upon by it, and will be conclusive between the parties in any later suit. The court is empowered and directed by the Pub. Sts. c. 161, §§ 80, 81, to inquire into the validity of the mortgage if disputed, to find what is justly due upon it, and to direct the attaching creditor to pay it to the mortgagee within a certain time. If the creditor does not pay or tender the sum within the time, the attachment is to be void, and the property is to be restored. If the court makes such an order and the property is not restored, and the mortgagee then brings suit, it will be too late to set up that the order was erroneous because it required too large a sum to be paid. An error of that sort would not make the order void, and the attaching creditor will have had the conditions of his right to keep his attachment conclusively established against him.
It is true, however, that the plaintiff’s exceptions might be
But to save a second resort to this court we will go further, and say that in our opinion the rulings requested were wrong, and that the sale by the attaching officer did not have the effect attributed to it by the plaintiff. If we should assume, as seems to be assumed in Porter v. Warren, 119 Mass. 535, 538, as well as in Jackson v. Colcord, 114 Mass. 60, 62, that the provisions for sale of personal property attached (Pub. Sts. c. 161, §§ 89-103) apply to mortgaged as well as to unencumbered property, nevertheless we should be of opinion that they are subject to the peremptory and unqualified enactment in § 80, that, if the attaching creditor does not pay as directed, the attachment shall be void and the property shall be restored.
Something must yield in order to reconcile the different parts of the chapter, and both the history of legislation and considerations of justice convince us that, if the provisions for sale apply at all, they are subordinate to the rights of the mortgagee. The provisions for sale go back to the St. of 1822, c. 93. At that time mortgaged personal property was not subject to attachment. In 1829 attachment of such property was permitted, but on the express condition that the mortgagee should first be paid or tendered the full amount of his demand. St. 1829, c. 124, § 2. At this time, therefore, there could be no question as to selling perishable property before the mortgagee was paid. At this time, also, so far as we know, there were no provisions for
Next came the act of 1844. St. 1844, c. 148, §§ 2-6. Gen. Sts. c. 123, §§ 67-71. Pub. Sts. c. 161, §§ 79-83. This provides for attachment of mortgaged property in the hands of the mortgagor, and allows the mortgagee to be summoned as trustee and questioned as to the bona fides of the mortgage. Under this statute the mortgagee has not the right to payment within ten days, but must await the determination of the validity of his mortgage and of the amount due upon it. Martin v. Bayley, 1 Allen, 381, 383. But when the amount is determined, the statute says, in terms, as the Public Statutes still say, that unless it is paid the attachment shall be void and the property
It may be said that our construction renders the right to attach mortgaged perishable property in this manner of little value, as it either takes away or makes impracticable and valueless the right to sell the goods attached. Very possibly this is true. But there is no justice in extending the hardships which a debtor may have to suffer at the hands of a creditor, to a stranger to the suit, who has a paramount lien on the property. The first consideration is to protect him, and to that the right of attaching his mortgagor’s property must yield.
The computation of interest on the notes after maturity at the rate stipulated before maturity, notwithstanding the attachment, was according to the decisions in this State. Union Institution for Savings v. Boston, 129 Mass. 82. Lamprey v. Mason, 148 Mass. 231, 235. Exceptions overruled.