307 Mass. 118 | Mass. | 1940
The plaintiff held a mortgage upon an automobile owned by one Blair. In an action by the present
The judge denied the first, third and fifth requests in so far as they were at variance with a finding and ruling made by him, to the effect that the plaintiff’s rights, as mortgagee in the mortgaged property, were concluded by its failure to appear and answer and by permitting a default to be entered against it in the action in which it, as mortgagee, had been summoned as trustee.
There was no error in the refusal to grant the first request because the plaintiff was not entitled to immediate possession of the automobile. The third request could not be given as it was not supported by the agreed statement upon which the case was tried. The denial of the fifth request, to the effect that the default of the plaintiff as trustee mortgagee and the entry of judgment did not deprive it of its rights under its mortgage, was right. It was said by Morton, C.J., in Goulding v. Hair, 133 Mass. 78, at page 81, that “If the mortgagee fails to appear and is defaulted, he is estopped to set up the validity of his mortgage, and cannot maintain an action against the attaching officer
Order dismissing report affirmed.