Cowley v. McLaughlin

• Decision Date: 25 February 1886
• Citation: 4 N.E. 821,141 Mass. 181
• Parties: COWLEY v. MCLAUGHLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 181

4 N.E. 821

COWLEY v. MCLAUGHLIN.

Supreme Judicial Court of Massachusetts.

February 25, 1886

COUNSEL

C. Cowley, for plaintiff.

H.J Edwards, C.C. Mayberry, E.A. Upton, and N.D.A. Clark, for defendant.

OPINION

HOLMES, J.

This is a writ of entry, the demandant declaring upon a seizin in mortgage. The tenants are purchasers at an execution sale and their title depends upon the effect of the attachments in pursuance of which the sale was made. The attachment was made in October, 1873, of all the real estate in Middlesex county of Charles Cowley. At that time he appeared on the records of the registry of deeds as owning a third mortgage on the premises and nothing more. In fact, this mortgage, and also a second mortgage, the assignment of which to him had not been recorded, had been assigned by him to the demandant after entry for breach of condition. These last-mentioned assignments to and by him were recorded October 26, 1881 long after the attachments. At the time of the attachment he owned the equity of redemption, but the conveyance to him was not recorded until October 3, 1881. It may be assumed that he owned the first mortgage, and that there had been a merger. On the face of the records, Charles Cowley had nothing to attach. Blanchard v. Colburn, 16 Mass. 345; Eaton v. Whiting, 3 Pick. 484; Prout v. Root, 116 Mass. 410, 412. But if the conveyance of the equity to him had been recorded, the attaching creditor would not have been affected by Cowley's assignment over of the third mortgage, which stood in his name, but would have been entitled to treat it as merged, so far as to give the attachment priority. Clark v. Jenkins, 5 Pick. 280. And it may be argued, with some plausibility, that the attachment reached the equity of redemption none the less because Cowley's title did not appear, and that his seeming ownership of the mortgage must have the same effect as in the case supposed. But we are of the opinion that this argument cannot prevail. When the registry shows a title subject to attachment, the attaching creditor, by something of a stretch, is regarded in the light of a bona fide purchaser, to whom the recorded deeds have been exhibited, and to whom the conveyances over have been disclosed. Woodward v. Sartwell, 129 Mass. 210; Coffin v. Ray, 1 Metc. 212. But when the registry shows no title, and the creditor does not know that his debtor has one, which we must assume to have been the fact here, if it be in any way material, we think that he must take what accident throws into his net, as he finds it, and that he cannot claim the benefits of a fiction to get more than his debtor really owned. See Haynes v. Jones, 5 Metc. 292.

The creditor cannot be taken to have relied upon Cowley's seeming ownership of the mortgage, even infinitesimally, in making his attachment, unless he knew that Cowley owned the equity, because the mortgage, standing by itself, did him no good. All ground for treating the creditor as a bona fide purchaser, as against the assignee of...