Nashua Sav. Bank v. Abbott

• Decision Date: 23 May 1902
• Citation: Nashua Sav. Bank v. Abbott, 181 Mass. 531, 63 N.E. 1058 (Mass. 1902)
• Parties: NASHUA SAV. BANK et al. v. ABBOTT.
• Court: Supreme Judicial Court of Massachusetts

181 Mass. 531

63 N.E. 1058

NASHUA SAV. BANK et al. v. ABBOTT.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1902

COUNSEL

Alfred S. Hall, for plaintiff.

Howard K. Brown, G. A. Pevey, Emery B. Gibbs, and Edward B. Pratt for defendant.

OPINION

BARKER J.

The right to a seat in the exchange had a pecuniary value; could be transferred, under restrictions, and, upon the member's death could be disposed of by a committee, by sale; the price, after extinguishing the claims of other members, going to the legal representatives of the deceased. These characteristics make such rights property, and they are so recognized and dealt with. Fish v. Fiske, 154 Mass. 302, 28 N.E. 278; Currier v. Studley, 159 Mass. 17, 33 N.E. 709. See Hyde v. Woods, 94 U.S 523, 24 L.Ed. 264; Powell v. Waldron, 89 N.Y. 328 42 Am. Rep. 301; People v. Feitner, 167 N.Y. 1, 60 N.E. 1117; Barclay v. Smith, 107 Ill. 349, 47 Am. Rep. 437.

The assignment of October 6, 1883, was, in terms, a pledge of this property to the plaintiff, and, being upon a valuable consideration, gave the plaintiff a lien. As the property was not susceptible of delivery, the instrument need not be recorded (Marsh v. Woodbury, 1 Metc. 436), and the lien could be enforced without a foreclosure as of a mortgage of personalty (Taft v. Church, 162 Mass. 527, 532, 39 N.E. 283; McKie v. Gregory, 175 Mass. 505, 56 N.E. 720). See, also, Richardson v. White, 167 Mass. 58, 44 N.E. 1072.

We are of opinion that it was not intended to give the plaintiff a lien for all possible future indebtedness. We do not give that meaning to the words, 'This assignment * * * shall remain in full force until all indebtedness of said Allen S. Weeks to said bank shall have been paid.' When delivered, it was security for the payment of a loan of $4,500 then made. On November 1, 1894, this loan being unpaid, and the assignment still in the possession of the plaintiff, a note of that date for $5,000 was given in renewal of the $4,500 loan and of another loan of $500; and upon that note, which was a joint and several note of both of the makers of the assignment, and signed by both, was this written statement: 'Collateral security. One membership (or seat) of the Boston Stock Exchange.' The intention was to continue the lien for the payment of this $5,000 note, and the writing was sufficient for that purpose.

The note of $2,000 was dated May 31, 1890, and was in renewal of part of a note of $2,300, date December 1, 1884. Neither of these notes mentioned the assignment of October 6, 1883, and there is no writing signed by Weeks which makes it clear that the parties intended the lien to apply to either of these notes. We are of opinion that the $2,000 has never been secured by the lien.

This lien for the debt represented by the $5,000 note was in force on August 8, 1897, when the defendant's intestate died. Administration upon his estate was granted August 19, 1897. Thereafter the assignment was presented both to the officers of the exchange and to the defendant, and the claim was made that the plaintiff was entitled, under it, to be secured for its indebtedness. The seat was sold with notice of this claim, and a large sum was paid over by the exchange to the defendant, who took it with like notice. This change of the property into money in accordance with rights existing when the lien was created was like the conversion of mortgaged land into money by a foreclosure sale, and the lien subsisted and held the proceeds of the sale. Telegraph Co. v. Caldwell, 141 Mass. 489, 492, 493, 6 N.E. 737. As the defendant received the money with notice of the lien, and has of it in his hands more than enough to extinguish the debt for which the lien is security, the plaintiff is entitled to a decree, unless the lien has been extinguished, or the plaintiff's right to its enforcement lost, since November 7, 1897, when the money was paid to the defendant.

One contention is that this suit is barred by the short statute of limitations. That statute applies to actions by a creditor of the deceased. Pub. St. c. 136, § 9; Rev. Laws, c. 141, § 9. The right of the plaintiff to bring suit upon the note, or to prove it as a debt of the defendant's intestate before the commissioners appointed when the defendant represented that estate insolvent, is barred by the statutes cited. But the debt and the lien both exist, and this suit is not an action by a creditor to collect his debt, but a suit by an equitable owner to enforce his title. If the money had been received by the defendant's intestate, an in Telegraph Co. v. Caldwell, ubi supra, the short statute of limitations would have applied. It was not so received, but was paid to the defendant after his appointment, and with notice of the lien. By mingling with the funds of his intestate's estate money to which the plaintiff had an equitable title, and which the defendant took with notice of that title, the defendant could neither devest that title, nor gain the right to a defense which protects him from the suits of creditors of his intestate. The statute does not protect an administrator in converting to the use of the estate of his intestate the property of another, and is no defense to him against an action to enforce the equitable ownership of another in money which the administrator has received from a sale by the committee of the right of his intestate to a seat in the boare, and which the administrator took charged with a lien, and having notice of the lien. See ...