Porter v. Warren
| Decision Date | 29 February 1876 |
| Citation | 119 Mass. 535 |
| Parties | Franklin Porter v. William H. Warren |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Norfolk. Tort, by a mortgagee of personal property against an attaching officer, for the conversion of the mortgaged property. Trial in the Superior Court, before Allen, J., who by consent of the parties before verdict, reported the case for the consideration of this court on the question whether judgment should be entered for the plaintiff for the sum of $ 827.46, the amount of the mortgage debt, or for the sum of $ 775.25, the net proceeds of the sale of the goods by the defendant, who sold them as perishable property under the Gen. Sts. c. 123, §§ 73-77. The facts of the case appear in the opinion.
Judgment for the plaintiff.
W. E Jewell, for the plaintiff.
J. F. Kilton, for the defendant.
The material facts in this case are as follows: The plaintiff, being the mortgagee of certain goods, took possession of them under his mortgages for a breach of the condition thereof. The defendant, who is a deputy sheriff, on March 30, 1875, while the goods were in the possession of the plaintiff, attached and seized them upon two writs against the mortgagor, both served upon the same day. One was a writ in favor of Thomas S. Nowell, in which the plaintiff was summoned as trustee, and the other a common writ of attachment in favor of John Bath. On the same day the plaintiff duly made a demand in writing upon said Bath for the amount due under his mortgages, in pursuance of the Gen. Sts. c. 123, §§ 62, 63, but no payment or offer of payment of the amount due under the mortgages was ever made by Bath. On June 25, 1872, the defendant, upon the application of Nowell, both parties not consenting, sold the goods pursuant to the provisions of the Gen. Sts. c. 123, §§ 73-77, the proceeds of the sale, after deducting expenses, amounting to a sum less than the sum due on the plaintiff's mortgages. Both of said writs were entered in the Superior Court, judgments were obtained against the mortgagor, and the executions issuing thereon were levied upon the proceeds of said sale in the hands of the officer. In the suit of Nowell, in which this plaintiff was summoned as trustee, the said Nowell, on October 1, 1872, before he took judgment, discontinued against the trustee.
Upon these facts, it is clear that the attachment made in the suit of Bath was dissolved by the failure of the attaching creditor to pay or tender the amount for which the property was liable, to the mortgagee, within ten days after it was demanded. Gen. Sts. c. 123, §§ 62, 63. This attachment, therefore, cannot avail the defendant as a justification of his acts, but he must rely solely upon the legality of the attachment made in the suit of Nowell.
The statutes provide three modes in which a creditor may attach the personal property of his debtor which is subject to a mortgage.
If the property is in the possession of the mortgagee, he may sue out a trustee process in the common form, in which the mortgagee is summoned as trustee of the mortgagor, and, upon paying the amount due the trustee, the latter is required to deliver the property to the officer who holds the execution. Gen. Sts. c. 142, §§ 55-59. Hooton v. Gamage, 11 Allen 354.
A second mode is provided by the Gen. Sts. c. 123, § 62, by which the creditor may attach the personal property of his debtor which is subject to a mortgage, whether it be in the possession of the mortgagor or mortgagee, in the same manner as if it were unincumbered, provided he pays or tenders to the mortgagee the amount for which the property is liable within ten days after the same is demanded.
Section 67 of the same chapter provides, as the third method, that if the property is in the possession of the mortgagor, it may be attached in the same manner as if it was unincumbered, and the mortgagee may be summoned in the same action in which the property is attached as the trustee of the mortgagor, to...
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...E. 858; Chandler v. Saaner, 114 Mass. 364; Emery v. Hapgood, 7 Gray, 55; Cody v. Adams, Id. 59; Allen v. Wright, 134 Mass. 347; Porter v. Warren, 119 Mass. 535; Grainger Hill, 4 Bing. (N.C.) 212; Steward v. Gromett, 7 C.B. (N.S.) 191; Gilding v. Eyre, 10 C.B. (N.S.) 592. But even if the att......
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Simmons v. Woods
... ... attachment. Martin v. Bayley, 1 Allen, 381; ... Jackson v. Colcord, 114 Mass. 60; Porter v ... Warren, 119 Mass. 535; Allen v. Wright, 134 ... Mass. 347, and 136 Mass. 193; Goulding v. Hair, 133 ... Mass. 78. An attachment of personal ... ...
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Shapira v. Walker
...action * * * as the trustee of the mortgagor.’ R. L. c. 167, § 74. The property in question did not conform to that condition. Porter v. Warren, 119 Mass. 535;Drysdale v. Wax, 175 Mass. 144, 55 N. E. 804;Jenness v. Shrieves, 188 Mass. 70, 74 N. E. 312. Order dismissing report ...
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Jenness v. Shrieves
...of the mortgagee, and this proceeding was void. The facts proved showed a conversion. Boynton v. Warren, 99 Mass. 172; Porter v. Warren, 119 Mass. 535; Duggan v. Wright, 157 Mass. 228, 32 N.E. Exceptions overruled. ...