Field v. Early

• Citation: 45 N.E. 917,167 Mass. 449
• Parties: FIELD v. EARLY et al.
• Decision Date: 13 January 1897
• Court: United States State Supreme Judicial Court of Massachusetts

167 Mass. 449

45 N.E. 917

FIELD v. EARLY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 13, 1897

COUNSEL

William

A. Gile, for plaintiff.

Thomas G. Kent and Geo. T. Dewey, for defendants.

OPINION

FIELD C.J.

It appears, from the report in this case, that the plaintiff Field, took possession, without right, of the stock of goods on or about January 10, 1891, and retained possession until December 1, 1894, when he sold the goods at public auction and received the proceeds. At the time when he took possession Roosa was the owner of the equity in the goods subject to three mortgages,--one given by Merrifield to Dewey, on these and other goods, dated February 1, 1885; one given by Merrifield to Dewey, on these goods, dated December 18, 1890; and one given by Roosa to Albert K. Page, on the same goods, dated December 18, 1890. This last mortgage was given to secure the payment of $1,650, with interest, payable in one year from date; and there was no breach of the condition of this mortgage when Field took possession, and the mortgagee was not in possession. The two mortgages given by Merrifield to Dewey were to secure the payment of a promissory note, dated February 1, 1885, for $2,500 and interest, payable on demand, and the second of these mortgages was given as additional security to the first, and on goods added to the stock after the execution of the first mortgage. The principal of this debt, at the time the second mortgage was given, had been reduced to $1,400. On the same day, when the second mortgage was given, Merrifield conveyed the goods to Roosa, subject to the two mortgages, and then Roosa gave to Albert K. Page the third mortgage mentioned. No demand had been made for the payment of the note secured by the first and second mortgages, and it does not appear that the mortgagee under either of these mortgages, or his assignee, was in possession of the goods when Field took possession. In each of the three mortgages it was provided that the mortgagor might retain possession of the goods until breach of condition, and we infer that, at the time when Field took possession, Roosa must be regarded as in lawful possession, if anybody was, and he had the right of possession until some demand was made for the payment of the note secured by the first and second mortgages. See Field v. Roosa, 159 Mass. 128, 34 N.E. 77. On April 23, 1891, after the plaintiff took possession, the second mortgage given by Merrifield to Dewey was assigned by Dewey to Luke J. Page, as the report finds, "for the benefit of said Albert K. Page, and the sole ownership and beneficial interest therein was in the said Albert K. Page." It does not appear that the first mortgage ever has been assigned, or whether any of the goods covered by that mortgage were in existence when Field took possession. On January 17, 1891, Roosa brought an action against Field and one Lamb for a conversion of the goods, and obtained judgment against Field for the value of the goods; and we infer that the damages recovered in that suit were the full value of the goods at the time of the conversion, on or about January 10, 1891. On May 24, 1893, Albert K. Page brought a suit against Field for the conversion of the same goods as those sued for in the action of Roosa against Field, and this suit is now pending. The same counsel appear for Albert K. Page in his suit as appeared for Roosa in Roosa against Field, and Albert K. Page and his counsel were present at the trial of the action of Roosa against Field. Field has paid the judgment against him, and, by consent of the parties, the money is now in the hands of Messrs. Kent & Dewey, attorneys at law, who have been made parties defendant in the present suit, and hold the money to await the final order of the court in this case. The other defendants in the present suit, besides the deputy sheriff, to whom the execution in the action of Roosa against Field was committed for service, are Roosa, Albert K. Page, and Luke J. Page. The purpose of the present suit is that Albert K. Page may be enjoined from prosecuting his action at law against Field, and that the money in the hands of Messrs. Kent & Dewey may be paid to the persons equitably entitled to it.

It is found, in the report, that "the objection that an action for conversion by said Roosa would not lie was not taken or raised by any party at the trial of said action" of...