Rogers v. Abbott
| Decision Date | 12 January 1880 |
| Citation | 128 Mass. 102 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Henry B. Rogers v. Hubbard M. Abbott & another, & trustee |
Exceptions overruled.
E. E Webster, for the plaintiff.
J. C Hammond, for the defendants.
OPINION
Personal property in the possession of the principal defendants, but subject to a mortgage to Samuel L. Parsons, was attached by the plaintiff, and under the provisions of the statute Parsons was summoned in the same action as trustee of the defendants. Gen. Sts. c. 123, §§ 67-71.
The validity of the mortgage was established by the verdict of the jury in a trial on issues framed by the court. It is made the duty of the court, in such case, to ascertain the amount due, and to fix a time within which the attachment shall become void and the property be restored, unless the plaintiff pays or tenders to the mortgagee the amount found due.
Two exceptions were taken in the course of the trial before the jury. One was to the admission of a writing which was signed by the defendants and also by Parsons, when the mortgage was made, and as part of the same transaction, by which it was declared that Parsons held the mortgage for himself and in trust for two others, to secure them severally from loss on account of their indorsements of the defendant's notes, a schedule of which was thereto annexed. But this evidence was clearly admissible, as showing the actual consideration for the note and mortgage, and as also showing that the transaction was not fraudulent and void as against creditors. Commercial Bank v. Cunningham, 24 Pick. 270. Gardner v. Webber, 17 Pick. 407. Hanson v. Herrick, 100 Mass. 323. Hills v. Farrington, 6 Allen 80.
The other exception taken at the trial was to the refusal to rule that the mortgage was void as against the plaintiff, if it was given to indemnify Parsons for indorsing notes of the defendants which had not then matured and which did not mature and were not paid until after the attachment. But it is well settled that a mortgage given to indemnify one against his outstanding liabilities as an indorser for the mortgagor is a valid security for such liabilities, and cannot be defeated by an attachment made before the liability becomes absolute and has been paid by the mortgagee. The mortgagee is entitled to the full benefit of his security, as against the attaching creditor.
In Haskell v. Gordon, 3 Met. 268, where there was a simple attachment, without the trustee process, of personal property, mortgaged to secure the mortgagee from liabilities assumed as indorser for the mortgagor, it was said that there were great practical difficulties in carrying out fully the provisions...
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