David Evans v. William H. Warren &Amp; Another
| Decision Date | 07 March 1877 |
| Citation | 122 Mass. 303 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | David Evans v. William H. Warren & another |
Norfolk. Replevin of certain articles of personal property. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts in substance as follows:
In July, 1875, one Nancy Walsh brought an action against the plaintiff on a promissory note which was then due and owing by him to her, and attached the goods and chattels replevied belonging to the plaintiff, which were the same goods and chattels described in a mortgage given by him to her to secure the payment of the note. The attachment was dissolved by the plaintiff according to law. After the attachment was dissolved, and while the action on the note was pending Walsh commenced a foreclosure of the mortgage for a breach of its conditions in the non-payment of the note, and authorized the defendants to take possession for her of the mortgaged goods and chattels, for the purpose of completing the foreclosure by selling the same, of which due notice was given. While the defendants were holding such possession this action was brought.
No notice or intimation, prior to the commencement of this action, of any abandonment or waiver of any claim of hers upon, or interest in, the goods and chattels, which she might have under and by virtue of the mortgage, was given by Walsh to the plaintiff, except so far as the action on the note might be construed as a notice of such abandonment or waiver.
If, upon this statement of facts, the court found for the plaintiff, judgment for his possession of the goods and chattels replevied, with one dollar damages, was to be entered; otherwise, judgment for the defendants, without damages.
Judgment for the plaintiff.
J. E. Cotter, for the plaintiff.
B. D. Washburn, for the defendants, cited Atkins v. Sawyer, 1 Pick. 351; Washburn v. Goodwin, 17 Pick. 137; Prout v. Root, 116 Mass. 410.
A party holding personal property by virtue of a mortgage or pledge may waive his claim under such mortgage or pledge, and attach the property in a suit to recover the debt for which the mortgage or pledge was given. Buck v Ingersoll, 11 Met. 226, 232. Such attachment is, in itself, a waiver of the claim under the mortgage. The liens respectively created by mortgage and by attachment on...
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First Nat. Bank of Osakis v. Flynn
...of remedies and a waiver of rights under the mortgage, there is divergence of authority. Among the cases for the affirmative are Evans v. Warren, 122 Mass. 303; Whitney v. Farrar, 51 Me. 418; Libby v. Cushman, 29 Me. 429; Haynes v. Sanborn, 45 N. H. 429; Dyckman v. Sevatson, 39 Minn. 132, 3......
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Stein v. McAuley
...and Oklahoma are committed to the doctrine that an attachment of the mortgaged property waives the lien of the mortgage. See Evans v. Warren, 122 Mass. 303; Whitney v. Farrar, 51 Me. 418; Haynes v. Sanborn, 45 N. H. 429;Dyckman v. Sevatson, 39 Minn. 132, 39 N. W. 73;Cox v. Harris, 64 Ark. 2......
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Barchard v. Kohn
...that an attachment of the mortgaged property by the mortgagee for the mortgage debt is a waiver of his lien under the mortgage is Evans v. Warren, 122 Mass. 303. The decision in that case was placed upon the ground substantially that the liens created by mortgage and by attachment upon the ......