Pecker v. Silsby
| Decision Date | 03 July 1877 |
| Citation | 123 Mass. 108 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Seth E. Pecker & others v. Eleanor H. Silsby |
Suffolk. Replevin of chattels alleged to belong to Seth E Pecker, Frank O. Dame and John H. Swasey. Writ dated June 23 1875. At the trial in the Superior Court, before Dewey, J the following facts appeared:
J. H Silsby, on September 10, 1872, was owner of the property in question, and on the same day sold it to Flack & Finlay, and received back from them in part payment a mortgage to him to secure $ 8000, according to four notes for $ 2000 each, dated September 7, 1872. None of these notes were paid. This mortgage was duly recorded on September 10, 1872. Silsby died on August 2, 1874, a short time before the last of the above named notes fell due, and his wife, the defendant, was appointed executrix of his will on September 1, 1874.
On October 24 or 26, 1874, Flack & Finlay, then being the owners of all the personal property, subject to the mortgage aforesaid, gave a new mortgage, dated October 26, 1874, to the defendant, to secure the same debt as the old one, according to two notes of $ 4000 each, payable in six and twelve months respectively, and either on October 24 or 26, 1874, the defendant gave up to Flack & Finlay the old notes given to her husband and received the new notes and the mortgage to her.
On October 26, 1874, after the new mortgage and notes were delivered to the defendant, Flack & Finlay executed and delivered a bill of sale of the property to Pollard & Bliss, who took possession of it on October 27, 1874.
Pollard & Bliss, on October 27, 1874, in consideration of money advanced to them, executed two mortgages upon the property to the plaintiffs, one to Seth E. Pecker and Frank O. Dame, copartners under the style of Seth E. Pecker & Co., and one to John H. Swasey, both of which were delivered and recorded on the same day, and recited that they were subject to "prior mortgages to the amount in all of eight thousand dollars."
Pollard & Bliss, when negotiating with Flack & Finlay for the purchase of this property, understood that it was subject to a mortgage for $ 8000, belonging to the defendant, and, at the request of Pollard & Bliss, Flack & Finlay had procured the defendant either to extend the time of this mortgage or to renew the mortgage, so that the time of payment of the $ 8000 should be one half in six months and one half in twelve months.
It was known to the plaintiffs, at the time they took their mortgages, that there was a prior mortgage or prior mortgages on the property held by the defendant to secure $ 8000, but it was in dispute whether they knew this mortgage or one of these mortgages was a mortgage for $ 8000, payable one half in six months and one half in twelve months, and the question was submitted to the jury, who answered in the affirmative.
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