Colby v. Columbia Loan Co.

• Decision Date: 03 April 1908
• Parties: COLBY et al. v. COLUMBIA LOAN CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 315

84 N.E. 313

COLBY et al.

v.COLUMBIA LOAN CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1908.

Appeal from Superior Court, Suffolk County.

Bill by Benjamin F. Colby and others against the Columbia Loan Company and others (as amended), to set aside a mortgage as in violation of statute. Decree of dismissal, and the named plaintiff appeals. Affirmed.

Edward F. Brady, for appellant.

A. K. Cohen, for appellees.

BRALEY. J.

It is the object of Rev. Laws 1902, c. 102, §§ 51-55, whatever paper from the transaction may assume, to protect borrowers of money, where the amount is less than $1,000, from the payment in any event of interest in excess of 18 per cent. But if security is given by the mortgaging of household furniture, section 53 declares that the mortgage shall be invalid unless it sets forth the actual transaction with substantial accuracy. If there is more than one owner, no distinction as to the nature of the title of the mortgagors is recognized in the statute, which may be either joint or several. This provision is not in the nature of an exemption similar to that created by Rev. Laws 1902, c. 167, § 38, and chapter 177, § 34, for the benefit of householders and mechanics in the attachment of personal property, and where in the construction of the statutes, of which these provisions are re-enactments, it has been held that the privilege, being personal to the debtor, is lost if he chooses to make the title joint. Pond v. Kimball, 101 Mass. 105. But it is part of a general legislative policy for the uniform protection of the class of borrowers described, and the prohibition, not being within the control of the mortgagor, remains in force apart from any community of title, if the property mortgaged falls within the description named in the statute. Washington Nat. Bank v. Williams, 188 Mass. 103, 107, 74 N. E. 470, and cases cited. The facts upon which, as stated by him in a condensed form, the presiding judge ruled that the bill should be dismissed are substantially undisputed. The plaintiff Colby, who previously had kept at the home occupied by himself and wife a restaurant where meals were served, and rented rooms fitted with common household furniture to lodgers, formed a copartnership with the plaintiff Griffith, and the firm continued the business. If there had been no transfer, under the decision of Glidden v. Nason, 186 Mass. 140, 71 N. E. 304, the furniture in the living rooms of the...