Simmons v. Woods

144 Mass. 385 | Mass. | 1887

W. Allen, J.

The Pub. Sts. c. 161, § 74, provide that personal property of a debtor that is subject to a mortgage, and of which the debtor has the right of redemption, may be attached and held as if it were unencumbered, if the attaching creditor pays to the mortgagee the amount of the debt for which it is liable, within ten days after the same is demanded. Section 79 provides that personal property of a debtor subject to a mortgage, and being in the possession of the mortgagor, may be attached in the same manner as if unencumbered, and the mortgagee summoned as the trustee of the mortgagor to answer such questions as may be put touching the consideration of the mortgage and the amount due thereon. There are further provisions for the trial, between the plaintiff and the mortgagee, of questions concerning the validity of the mortgage and the amount due upon it, and declaring the attachment void unless the amount found 'due be paid. It is only under these provisions that mortgaged personal property can be attached, or taken on execution as the property of the mortgagor.

In this case, the writs and service were such that the attachments of the property in question were valid, under the Pub. Sts. a. 161, § 79, until avoided by non-payment, if the property was mortgaged to Cobb, who was summoned as trustee; and they were equally valid if there was no mortgage, as attachments of unencumbered property. Pub. Sts. a. 183, § 6. Belknap v. Gibbens, 13 Met. 471.

The case differs from Allen v. Wright, 134 Mass. 347, and 136 Mass. 193. In that case, there was no jurisdiction of the trustee and there was not, and could not have been, such service of the writ as to make a valid attachment.

The only question is whether the attachments were dissolved by the discharge of the trustee, so that they cannot be set up against the debtor and purchasers from him. If Cobb were not mortgagee, his discharge as trustee clearly could not affect the attachments. The only effect of inserting his name in the writ as trustee would be to require service on him and on the defendant by copy of the original writ, instead of by a separate summons. In the second of these actions, Cobb, who was summoned because his name appeared as mortgagee in the record of what purported to be a mortgage, answered that he had been informed that the debtor executed a mortgage to him; but that he never saw the mortgage, and it never was delivered to him, and he never paid any consideration for it. There was no occasion for any further examination, or for any order of the court. Nothing remained but to discharge the trustee. By the statute, the attachment was valid until the attaching creditor failed to pay a sum found due on the mortgage, and ordered by the court to be paid. There is no provision for any order where nothing is found due; and when the trustee answers that he is not mortgagee, or that there is nothing due to him, and has answered all questions which the plaintiff desires to put to him, the court can make no order for the payment of money to him, and he is entitled to be discharged. . If the trustee is in fact the mortgagee, and if he claims that there is anything due on the mortgage, he has a right to have the questions determined whether anything is due, and how much, and an order made for payment of what is due, because the attachment is valid against him until such an order is made, and therefore, if he is discharged before that question is determined, the attachment is dissolved; and this whether he has disclosed the mortgage and stated the amount due upon it in his answers, as in Martin v. Bayley, 1 Allen, 381, and Hayward v. Greorge, 13 Allen, 66, or has made a general answer denying effects in his hands, which is in effect appearing for examination, as in Groulding v. Hare, 133 Mass. 78. Whether, when a trustee fails to appear (see Flanagan v. Cutler, 121 Mass. 96), or appears and submits to examination by filing a general answer denying assets, and is discharged, the creditor, to sustain the attachment against the debtor, may show that in fact the mortgage was fraudulent and void as to creditors, or had been fully paid, we need not consider. It is enough, that, when the answer of the trustee disclaims all right as mortgagee, and shows that there is no mortgage and no debt, and the trustee is thereupon discharged, such discharge cannot avoid or dissolve an attachment otherwise valid. When the answer or examination of the trustee shows that he has no interest in the property, as mortgagee or otherwise, the whole purpose for which he is summoned is accomplished, and there is no propriety in his remaining longer a party to the suit. It is not necessary that there should be any finding of facts by the court, or any recital of facts in the order of discharge.

When the record shows that the trustee has no interest in the matter, his discharge, in whatever form effected, will be presumed to be for that reason. The only order of the court contemplated by the statutes is the order for the payment of a sum found due to the trustee. as mortgagee, and the attachment is valid until vacated by neglect to comply with such an order. When the answer or examination of the trustee shows that such an order cannot be made, and that the attachment cannot be avoided under the statute, and that the trustee is entitled to be discharged, it cannot be that the attachment will be dissolved by the discharge of the trustee, or the discontinuance of the proceedings against him. Exceptions sustained.