Crocker v. Atwood
| Decision Date | 29 June 1887 |
| Citation | 12 N.E. 421,144 Mass. 588 |
| Parties | CROCKER v. ATWOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.H. Drew and Perkins & Lyman, for defendant.
The question whether the sale was absolute or conditional was objected to on the ground that it tended to "vary the terms of a written instrument under seal with covenant of warranty," and was excluded by the court for that reason. See 1 Greenl.Ev. §§ 275, 279; Dempsey v Kipp, 61 N.Y. 462; Hussman v. Wilkie, 50 Cal 250; Furbush v. Goodwin, 25 N.H. 425; Hughes v Sandal, 25 Tex. 162; Blake v. Hall, 19 La.Ann. 49; Reeve v. Dennett, 137 Mass. 315. See Battles v. Fobes, 21 Pick. 239; Davenport v. Mason, 15 Mass. 85; Munroe v. Perkins, 9 Pick. 298. The fact that a bill of sale was intended only as collateral security may be shown by parol evidence, for the purpose of negativing an authority to secure supplies on the credit of its holder. Howard v. Odell, 1 Allen, 85; Blanchard v. Fearing, 4 Allen, 118; Clark v. Washington Ins. Co., 100 Mass. 509. The transfer of personal property may be shown by parol evidence to have been only a pledge, although a common bill of parcels was given at the time. Hazard v. Loring, 10 Cush. 267; Caswell v. Keith, 12 Gray, 351. See Fletcher v. Willard, 14 Pick. 464. In equity it has been repeatedly held that a conveyance of land, absolute in form, may be shown by parol evidence to have been intended as security for a debt. Campbell v. Dearborn, 109 Mass. 130; McDonough v. Squire, 111 Mass. 217; Hassam v. Barrett, 115 Mass. 256. So, also, of a conveyance of personal property. Newton v. Fay, 10 Allen, 505. Likewise of an assignment of a mortgage. Pond v. Eddy, 113 Mass. 149. Harper v. Ross, 10 Allen, 332, is not an authority for the plaintiff, as the opinion of the court shows clearly that the rule was to be enforced only in actions between the parties. Under St.1883, c. 223, § 14, authorizing equitable defenses in actions of law, the questions would be improperly excluded even in a suit between the parties. The evidence sought to be admitted was material.
It is obvious that, if the present action can be maintained, it must be either in trover or for malicious prosecution. For all actions as keeper, the defendant can justify under the writ, and, as no claim is here made of any irregularity in the service of the same, all acts of the defendant in such capacity are to be presumed lawful. McGough v. Wellington, 6 Allen, 505. It appears by the auditor's report that no demand was made upon the attaching creditor or officer pursuant to Pub.St. c. 161, §§ 74, 75. That no such demand was made is in fact admitted by the plaintiff. The court ought, therefore, to have given the first ruling requested, that, "upon all the evidence offered, this action cannot be maintained." See Haskell v. Gordon, 3 Metc. 268; Wing v. Bishop, 9 Gray, 223; Hunt v. Williams, 106 Mass. 114; Putnam v. Rowe, 110 Mass. 28; Howe v. Bartlett, 1 Allen, 29. The second request for ruling should have been given. See O'Brien v. Barry, 106 Mass. 300; Lindsay v. Larned, 17 Mass. 190; Randall v. Hazelton, 12 Allen, 412; Hamilburgh v. Shepard, 119 Mass. 30. As to the third request, there being no breach of the condition of the mortgage at the time of bringing this suit, the plaintiff had no right to foreclose his mortgage, and any acts of this defendant in preventing such foreclosure are not tortious. As to the fourth request, see National Bank v. Thomas, 125 Mass. 278; Thomas v. Blake, 126 Mass. 320; Appleton v. Bancroft, 10 Metc. 231; Wheelock v. Hastings, 4 Metc. 504; Edwards v. Sumner, 4 Cush. 393. As to the fifth request, the proceeds from the sale of the property attached on mesne process are considered in law as the property itself. Pollard v. Baker, 101 Mass. 259. Upon judgment being rendered for the defendant, Crocker is restored in law to his position before the suit, having the same claim upon the proceeds from the sale of the mortgaged property as he had under his mortgage upon the property itself. As to the sixth request, Pub.St. c. 161, § 74, contains sweeping provisions, without qualifying words, as to the right to attach personal property subject to mortgage. Nothing in the section itself, or in the adjudications thereon, deprives a plaintiff of his right of attachment in cases where a co-defendant is joined with the mortgagor. Where such a mortgagee is a joint contractor with the mortgagor, and is necessarily joined, to refuse the ruling requested in effect deprives the creditor of his right under this section of the statute.
P.H. Cooney, for plaintiff.
It is settled that a mortgagee's interest in personal property is not subject to attachment, although he alone can maintain an action against a stranger for its conversion. Prout v. Root, 116 Mass. 410. The attachment made, therefore, of the property, as the property of the plaintiff, certainly, under the circumstances of this case, was a tortious act, which in itself was a conversion, according to well-settled principles of law. Woodbury v. Long, 8 Pick. 542; Deyo v. Jennison, 10 Allen, 410; Bean v. Hubbard, 4 Cush. 85; Stearns v. Dean, 129 Mass. 139; St. George v. O'Connell, 110 Mass. 475; McAvoy v. Wright, 137 Mass. 207; McPartland v. Read, 11 Allen, 231. And it is wholly immaterial whether Nash had the right to attach the property as the property of said Snell or not. By Pub.St. c. 161, § 74, property of a debtor that is subject to a mortgage, pledge, or lien, and of which the debtor has the right of redemption, may be attached and held in like manner as if it were unincumbered, if the attaching creditor pays or tenders to the mortgagee, pawnee, or holder of the property the amount for which it is saleable, within 10 days after the same is demanded. Snell was not the debtor of Nash, nor was Nash a creditor of Snell. Downs v. Fuller, 2 Metc. 135; Inman v. Mead, 97 Mass. 310; Miller v. Bannister, 109 Mass. 289; Ames v. Sturtevant, 2 Allen, 583; Damon v. Bryant, 2 Pick. 411. There being no evidence that the said Nash was a creditor of Snell,--on the contrary, it appearing affirmatively that he was not, that the claim was wholly fictitious, that he falsely assumed a character he did not possess, that of a creditor, and for a fraudulent purpose, to defeat the plaintiff's mortgage,--the attachment was not authorized by law; and the defendant having caused it to be brought, knowing it to be such, is guilty of trespass, and liable for the conversion of the property under it. Sartwell v. Horton, 28 Vt. 370; Duke de Cadaval v. Collins, 4 Adol. & E. 858; Chandler v. Saaner, 114 Mass. 364; Emery v. Hapgood, 7 Gray, 55; Cody v. Adams, Id. 59; Allen v. Wright, 134 Mass. 347; Porter v. Warren, 119 Mass. 535; Grainger v. Hill, 4 Bing. (N.C.) 212; Steward v. Gromett, 7 C.B. (N.S.) 191; Gilding v. Eyre, 10 C.B. (N.S.) 592. But even if the attachment, when made, was valid, the defendant, being deputed as keeper at his own request, and retaining Snell in his employ as agent and manager of said business, and as the custodian of said property, notwithstanding Snell was one of the defendants in said suit, dissolved this attachment; and the plaintiff was thereupon entitled to the possession of the property. Boynton v. Warren, 99 Mass. 172; Martin v. Bayley, 1 Allen, 381. There is ample evidence of a conversion of the property by this defendant independently of any proceedings under the attachment, and the facts found show that, as a matter of law, the property was converted before the suit was brought. The subsequent collusive and fraudulent attachment certainly did not purge the original wrong, but rather added to its force. Coughlin v. Ball, 4 Allen, 334; Pine v. Morrison, 121 Mass. 296; Moody v. Blake, 117 Mass. 23; Carter v. Kingman, 103 Mass. 517. The evidence objected to was rightly excluded. The question simply called for the construction and legal effect of a formal bill of sale under seal, with full covenants of warranty by one of the parties to it. See Harper v. Ross, 10 Allen, 332; Pennock v. McCormick, 120 Mass. 275; Philbrook v. Eaton, 134 Mass. 398. The first, second, and third requests were rightly refused. The fourth request for ruling was also rightly refused. The fifth and sixth requests for rulings were also rightly refused.
OPINION
The attachment of the property on March 18, 1885, was a breach of the condition that the mortgagor should not suffer the property to be attached on mesne process. It was immaterial that the attachment was void, and that the mortgagor had no attachable interest in the property. It was taken and held by virtue of the attachment as his property, and with his consent, and by his procurement. The plaintiff, therefore, had the right of possession, on the twenty-third of March, when this suit was commenced, unless the property could be held against him under the attachment. The defendant caused the property to be taken on the attachment, and was in possession of it as keeper under the attachment, holding in denial of the plaintiff's right. If the attachment was not valid, there was evidence of the plaintiff's right of possession of the property, and of the conversion of it by the defendant.
In January, 1884, a copartnership existing between the plaintiff and one Snell and one Nash was dissolved, and Snell became the sole owner of certain personal property used in the business, which on the same day he mortgaged to the plaintiff, and which included the property in question. The plaintiff retired, and the defendant, who had been behind Nash, bought out his interest, and the business was carried on by Snell and the defendant; Snell owning the property. In August, 1884, the defendant bought the property, and Snell's interest in the business, and continued the business under the agency of...
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