Monaghan v. Longfellow

• Decision Date: 22 February 1890
• Citation: 82 Me. 419,19 A. 857
• Parties: MONAGHAN v. LONGFELLOW.
• Court: Maine Supreme Court

19 A. 857

82 Me. 419

MONAGHAN

v. LONGFELLOW.

Supreme Judicial Court of Maine.

Feb. 22, 1890.

(Official.)

Report from supreme judicial court, Washington county.

J. F. Lynch, for plaintiff. C. B. Donworth and A. McNichol, for defendant.

PETERS, C. J. This case is between the holder of a Holmes note and an officer who attached a wagon upon which the Holmes note was secured. After the attachment, the holder of the note possessed himself of the wagon by a replevin writ against the officer.

One question is whether a Holmes note is so much of the nature of a chattel mortgage that the holder cannot maintain an action of replevin for the property against an attaching officer until he has given to the officer 48 hours' notice in writing of his claim, and the amount of it, as required by Rev. St. c. 81, § 44. No notice is shown to have been given in the present instance. We think notice was necessary. The language of the section is broad. It covers property, "mortgaged, pledged, or subject to any lien created by law, and of which the debtor has the right of redemption." A Holmes note has been placed by the statutes in all respects on the footing of a mortgage. Without form of a mortgage, it is in effect a mortgage. The condition precedent contained in the note is by statute substantially converted into a condition subsequent. It must be recorded, and may be foreclosed and redeemed in the same manner that common mortgages may be. Rev. St. c. 91, § 7; Id. c. 111, § 5. There is exactly as much propriety in requiring a notice to the officer, in a case like this, as where the instrument is in the literal form of a mortgage. Then comes the question whether, in the present case, the necessity of a notice has been waived. When the case came up at the first trial, two questions of a technical character arose, and it appears that some discussion occurred between the counsel and court in relation to the disposition of the questions. The two questions were whether the notice to the officer was necessary, and whether the note had been legally recorded or not. The counsel for the plaintiff contends that, as the first point stood in the way of a decision on the second point, being preliminary to it, the first point was expressly waived by counsel. The counsel for the defendant denies this, and contends that there was no waiver and no intention on his part to admit any such thing. The counsel on both sides have testified about the matter, and understand it differently....