Flanagan v. Cutler
| Decision Date | 23 October 1876 |
| Parties | Mary A. Flanagan v. Nathaniel Cutler |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hampden. Tort, by a mortgagee of personal property, against a deputy sheriff, who attached and sold the same on execution as the property of the mortgagor, in two actions in which the mortgagee had been summoned as trustee. At the trial in the Superior Court, before Allen J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which is stated in the opinion.
Exceptions sustained.
G. D Robinson, for the defendant.
M. P Knowlton, for the plaintiff.
In the original actions against T. J. Flanagan, personal property in his possession was attached, which was subject to a mortgage held by this plaintiff, and she was duly summoned as trustee under the Gen. Sts. c. 123, §§ 67-71. Kent v. Lee, 9 Gray 45. It appears in the bill of exceptions that she knew the property was attached and that she was summoned as trustee because she held the mortgage. She gave her papers to T. J. Flanagan, to act in her behalf, but no appearance was entered or answer filed for her, and she was defaulted. Execution having issued against T. J. Flanagan in these actions, and the property attached having been sold by the defendant as deputy sheriff, and the proceeds applied to the satisfaction of the executions, she now brings this action against him for conversion of the property. The decisive question of the case is, whether she is concluded by failing to appear and suffering a default, when summoned as trustee.
Upon a careful examination of the provisions of the Gen. Sts. c. 123, §§ 62-71, we are of opinion that all questions affecting the interests of the mortgagee in the property are to be finally determined in the action in which the property is attached, and the mortgagee summoned as trustee. The court is to inquire into the consideration of the mortgage and the amount due thereon. The amount being ascertained, the attaching creditor may be directed to pay that sum to the mortgagee within a certain time; if he fails to do so, the attachment is dissolved. The validity of the mortgage may also, at the instance of the creditor, be tried by a jury, and the mortgagee must abide the final determination in reference to its validity. Martin v. Bayley, 1 Allen 381, 383. See Furber v. Dearborn, 107 Mass. 122, and cases cited.
The questions therefore to be tried are those affecting the consideration, the validity of the mortgage, the amount due and such other questions as may be necessarily...
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...Allen, 381, 383, 384;Boynton v. Warren, 99 Mass. 172, 174;Furber v. Dearborn, 107 Mass. 122;Sullivan v. Lamb, 110 Mass. 167, 169;Flanagan v. Cutler, 121 Mass. 96;Goulding v. Hair, 133 Mass. 78, 80;Simmons v. Woods, 144 Mass. 385, 11 N. E. 659;McDonald v. Faulkner, 154 Mass. 34, 37, 27 N. E.......
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...way is valid only and continues so long as proceedings are had in accordance with the provisions of Pub.St. c. 161, §§ 79-83. Flanagan v. Cutler, 121 Mass. 96; Brown Neale, 3 Allen, 74, and other cases cited. The discharge of the attachment determined the bailment of the officer. OPINION W.......
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