Hammond v. Danielson

• Decision Date: 25 February 1879
• Citation: 126 Mass. 294
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Stephen Hammond v. Gustof Danielson & another

126 Mass. 294

Stephen Hammond v. Gustof Danielson & another

Supreme Court of Massachusetts

February 25, 1879

Argued November 16, 1877

Suffolk. Replevin of a hack. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on agreed facts, in substance as follows:

On January 23, Edward Brackett, the owner of the hack in question, executed and delivered the following mortgage to the plaintiff:

"Know all men by these presents, that I, Edward Brackett, of Boston, in the county of Suffolk, in consideration of five hundred dollars paid by Stephen Hammond of Boston, aforesaid the receipt whereof is hereby acknowledged, do hereby grant sell, transfer and deliver unto the said Stephen the following goods and chattels, namely, one hack, built by Hall, now in use at the American Stables, Sudbury Street Boston, and numbered 277. To have and to hold all and singular the said goods and chattels to the said Stephen Hammond and his executors, administrators and assigns, to their own use and behoof forever. And I hereby covenant with the grantee that I am the lawful owner of the said goods and chattels; that they are free from all incumbrances; that I have good right to sell the same as aforesaid; and that I will warrant and defend the same against the lawful claims and demands of all persons. Provided, nevertheless, that if the grantor or his executors, administrators or assigns shall pay unto the grantee or his executors, administrators or assigns the sum of five hundred dollars in two years from this date, with interest semiannually at the rate of six per cent. per annum, and until such payment shall not waste or destroy the same, nor suffer them or any part thereof to be attached on mesne process, and shall not, except with the consent in writing of the grantee or his representatives, attempt to sell the same or any part thereof, then this deed, as also a note of even date herewith, signed by Edward Brackett, whereby he promises to pay to the grantee or order the said sum and interest at the times aforesaid, shall both be void. And it is agreed that, until default in the performance of the condition of this deed, the grantor and his executors, administrators and assigns may retain possession of the above-mortgaged property and may use and enjoy the same. In witness whereof I hereunto set my hand and seal, and affix and cancel the stamp required by law, this twenty-third day of January in the year one thousand eight hundred and seventy-three."

This mortgage was duly recorded on January 30, 1873. Agreeably to...