Woodward v. Ham

140 Mass. 154 | Mass. | 1885

Deyens, J.

The only question which the defendant seeks to present by his exceptions is whether the demand made by the plaintiff, who was the mortgagee of property attached by the defendant as a deputy sheriff, was defective and insufficient to defeat such attachment, so far as a certain frame shop building was concerned.

Mortgaged personal property of a debtor is subject to attachment upon the condition that the party making the same shall, within ten days, pay or tender to the mortgagee the sum for which it is liable after the same is demanded. The mortgagee, when demanding payment of the money due him, is to state in writing “ a just and true account of the debt or demand for which the property is liable to him; ” and the failure to pay within the ten days vacates the attachment. Pub. Sts. c. 161, §§ 74, 75. Such a demand necessarily involves, in some intelligible form, a designation of the property which the mortgagee claims to be subject to his incumbrance, as by an enumeration of the articles, a statement that it is all the personal property attached, or some specified portions thereof then in the hands of an officer. It may be that a reference to the mortgage itself, if upon the public records, for the enumeration of the articles claimed, would be sufficient. Moriarty v. Lovejoy, 23 Pick. 321. Harding v. Coburn, 12 Met. 333, 340. But we have no occasion to consider this question. The demand made by the mortgagee does not refer to his mortgage for an enumeration of the articles claimed by him as subject to the attachment; it refers to it only to show that it covers the horse, wagon, and harness attached. If the defendant had examined that mortgage, and found that a frame building was specified therein, he might well have supposed it to be a different one from that attached, or that it had been released from the mortgage, as the plaintiff had not in his demand claimed that the building attached was covered by the mortgage, or made any reference thereto.

The articles specified having been returned to the mortgagor, on the day after the demand, by the receiptors, to whom the sheriff released them, the mortgagee was restored to his rights, and was enabled fully to foreclose his mortgage thereon. The defendant could not therefore retake them, or levy the execution against the mortgagor thereon. Robinson v. Mansfield, 13 Pick. 139, 142. But as the plaintiff’s demand was not sufficient to vacate the attachment of the building, which both parties concede to be personal property, the foreclosure of the mortgage thereon, however effective as against the mortgagor, could not change the defendant’s right to this property. Wing v. Bishop, 9 Gray, 223.

In replevin, where part of the goods replevied are found to belong to the plaintiff and part to the defendant, judgment is rendered for each accordingly.

Exceptions sustained.