Bigelow v. Casper

• Decision Date: 23 November 1887
• Citation: 13 N.E. 896,145 Mass. 270
• Parties: BIGELOW v. CASPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 270

13 N.E. 896

BIGELOW v. CASPER.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1887

COUNSEL

David Manning, Jr., for plaintiff.

The first exception relates to the admission of that portion of the testimony of William Burleigh objected to by defendant. This testimony was competent upon the ordinary principle of allowing extrinsic evidence to apply a written contract to its subject-matter. Johns v. Church, 12 Pick. 557; Hall v. Tufts, 18 Pick. 455; Goddard v. Sawyer 9 Allen, 78; Baxter v. McIntire, 13 Gray, 168; Clark v. Houghton, 12 Gray, 38; Pierce v Parker, 4 Metc. 80; Barrows v. Turner, 50 Me 127; Dodge v. Potter, 18 Barb. 195; Jones, Mortg. § 352; Cotton-Mills v. Payson, 130 Mass. 88.

The fact that the notes produced at the trial varied in some particulars from the notes described in the mortgage is immaterial. The date of the notes is erroneously given as "October 27, 1884." This was clearly a mistake, and simply an erroneous description in one particular of the notes intended to be secured. The demand upon the defendant, made by plaintiff, contained "a just and true account of the debt or demand for which the property was liable," according to the provisions of section 75, c. 161, Pub.St. Upon the facts and evidence appearing in the bill of exceptions, the action can be maintained. The mortgage was duly executed, delivered, and recorded before the property was attached by defendant. It was for a valuable consideration. It is not claimed that it was given in fraud of creditors. The demand was properly made upon the defendant, and the amount due was not paid or tendered by him within 10 days, or at any time thereafter. Pub.St. c. 161, §§ 74, 75.

H.E. Fales, for defendant.

The sheriff, who defends under the process of the court, is entitled to require of the plaintiff proof of his title, and a strict compliance with those provisions of the statute which enable him to bring this action. Bank v. Oldham, 136 Mass. 515. The record of a mortgage for personal property is a substitution for the possession by the mortgagee, which was necessary by the common law. A correct description of the debt or claim secured by the mortgage is as important and material as a correct description of the property covered by the mortgage, and the mortgage and record, to be sufficient as against attaching creditors, must correctly state the debt or claim secured by the mortgage. It is not sufficient that the mortgage and record give notice that there is a debt or liability to the plaintiff to the amount of $1,000, and that such a claim is outstanding, because the mortgage and record does more than that. In express terms, it secures and limits the security to a particular claim of $1,000, which is described, even to the date, and, as against an attaching creditor, no other claim is secured. Any material misstatement in the account required by Pub.St. c. 161, § 75, which tends to mislead the attaching creditor, renders the demand inoperative to dissolve the attachment, and defeats the right of the mortgagee to maintain an action against the attaching officer. Bicknell v. Cleverly, 125 Mass. 164. The debt which the mortgage purported to secure, had no existence at the time the mortgage was made. The debt demanded was an entirely distinct and different obligation, and, if it could be claimed that it was a renewal or continuance of the old obligation, there was no statement in the demand which describes it as such, or sets forth such renewal. The demand is also erroneous, in that it demands $4.04, costs of protest, which has nowhere been shown in the evidence to have constituted a debt against the mortgagor.

OPINION

DEVENS, J.

Parol proof of extrinsic circumstances may be admitted to apply a description to the subject-matter of a contract. If it appears that the description is not in all respects accurate, it may to a certain extent be rejected, and what remains alone regarded, if that be sufficient to identify it. Hall v. Tufts, 18 Pick. 457; Baxter v. McIntire, 13 Gray, 168; Pierce v. Parker, 4 Metc. 80.

Where a note described in a mortgage of personal property has been renewed, this fact may be shown, and the security applied to the note as thus renewed. Barrows v. Turner, 50 Me 127. Conversely, where there has been a substitution...