148 Mass. 69 | Mass. | 1888
The only question presented in this case is as to the liability of the defendant for the value of the wooden frame building sold by him. This building was personal property belonging to one Walker. ■ On December 3,1885, he mortgaged the building, and the stock of goods, merchandise, and fixtures of a store kept by Walker in it, to Maggie M. Riley, to secure a pre-existing debt payable on demand, the mortgage containing a power to sell upon giving ten days’ notice. He was insolvent, and the mortgage was made with a view to give a preference to said Riley, who knew his purpose in giving it. On December 12, Riley brought an action on the mortgage note,
The statute provides that the judge of insolvency shall issue a warrant to the sheriff, or one of his deputies, directing him forthwith as messenger to take possession of all.the estate, real and personal, of the debtor, except such as may be by law exempt from attachment, and to keep the same until the appointment of an assignee; and it makes it the duty of the messenger to “demand and receive from the debtor and other persons all the estate in his or their possession respectively which is herein ordered to be assigned.” Pub. Sts. c. 157, §§ 17, 18. It is also made the duty of the debtor, not only'to deliver to the messenger all the estate in his possession or power, but also to “ disclose the situation of such parts thereof as are in the possession of any other person, so as to enable the messenger to demand and receive the same.” Pub. Sts. c. 157, § 19. The messenger is the temporary custodian of all the estate of the debtor, and the intention of the statute is that he shall demand and receive all the property of the debtor which belongs to his estate, and which ought to go to the assignee for the benefit of the creditors.
In the case at bar, it is conceded that the mortgage from the insolvent debtor to Riley was fraudulent under our insolvent laws. Pub. Sts. c. 157, § 96. The statute declares that such a conveyance “ shall be void.” By this is meant, that it shall be void as to the assignee and the creditors. It is true that it is
The defendant cites the case of Cutter v. Gay, 8 Allen, 134, in which it was held that a messenger has no right to take into his possession personal property of the debtor which is held by an officer under a valid attachment. But this was upon the ground that the attachment was not dissolved until the assignment, and that until the assignment it was in the custody of the law, and thus the rights of all parties were protected. These reasons have no application to the case at bar, which, on the contrary, presents strong reasons for the application of a different rule, since, if the messenger had no right to intervene, the property of the debtor would be in a few hours sold, and the proceeds probably be put out of the reach of the assignee.
It is not necessary for us to consider the question of the effect of the attachment by the mortgagee of a part of the mortgaged property. We have assumed, in favor of the defendant, that such attachment would not discharge the mortgage upon the building in question, which was not attached, and have treated the case as if the mortgage was unimpaired. This is the most favorable view for the defendant.