Dillaway v. Butler
| Decision Date | 10 September 1883 |
| Citation | 135 Mass. 479 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Robert C. W. Dillaway v. Alford Butler & another |
Suffolk.
Decree affirmed.
R Stone, for the assignee.
G. W Estabrook, for the first mortgagee.
M Storey, for the plaintiff.
This is a bill in equity, brought by a mortgagee of personal property, against the assignee in insolvency of the mortgagor and a prior mortgagee. It alleges that the conditions of both mortgages are broken, and that the whole amounts secured by them are due; that the first mortgagee has given notice of his intention to foreclose his mortgage; that the assignee in insolvency of the mortgagor has taken possession of the property, and refuses to deliver it to either of the mortgagees, and has removed and concealed it so that it cannot be discovered by the plaintiff; that the assignee denies the validity of the first mortgage, and claims that it is void against him as assignee. The bill offers to redeem the first mortgage if it is valid, and if, upon payment, the plaintiff can obtain possession of the property, and alleges that the first mortgagee cannot deliver possession of the property upon payment; and prays that it may be determined whether the first mortgage is valid, and, if it is, that the plaintiff may pay the same, and that, upon such payment, or without it if the mortgage should be found invalid, the assignee be ordered to deliver the property to the plaintiff, or, if he has sold the same, to pay the plaintiff's debt out of the proceeds of such sale.
Upon these allegations, the court clearly has jurisdiction, and that jurisdiction is not defeated by the facts set up in the answer, and proved by the evidence, that the assignee had sold the property, and, at the time of the commencement of the suit, held more than sufficient of the proceeds to pay both mortgages. If these facts had been known to the plaintiff, and if, in consequence of them, he could have maintained an action at law against the assignee, it would have been for a different cause of action from that set up in the bill, and could not, without the plaintiff's election, have deprived him of his rights and remedies as mortgagee. Certainly the case of jurisdiction shown by the bill cannot be defeated by the disclosure at the hearing of wrongful acts of one of the defendants, which had exposed him to an action at law.
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