Simmons v. Woods

• Decision Date: 07 May 1887
• Citation: 144 Mass. 385,11 N.E. 659
• Parties: SIMMONS v. WOODS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 385

11 N.E. 659

SIMMONS v. WOODS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1887

COUNSEL

Charles Steere, for plaintiff.

The trustee's answer must be accepted and taken as true, ( Crossman v. Crossman, 21 Pick. 21;) and the decision has always been followed. The answer shows that no mortgage ever existed. Consequently the trustee cannot be regarded as a mortgagee within the statute, because there was no consideration paid for the mortgage. The mortgage was never delivered or accepted. In fact, the trustee never saw the mortgage. Recording a paper does not operate as delivery nor as acceptance. Jones, Chat.Mortg. § 106; Dole v. Bodman 3 Metc. 139. Delivery by the mortgagor, and acceptance by the mortgagee, are necessary to constitute a mortgage. In the case of Allen v. Wright, 136 Mass. 193, there was a valid mortgage. It will be seen that the officer filed copies, etc., within the time prescribed by Pub.St. c. 161 §§ 69, 70. See Sherman v. Davis, 137 Mass. 132. In this case we do not think that the discharge of the trustee dissolved the attachment. The object of the statute is to make the attachment effectual. Cochrane v. Rich, 142 Mass. 16, 6 N.E. 781. The discharge of the trustee, Cobb, is in effect, on the defendant O'Neil, and on the trustee himself, not unlike the case of Flanagan v. Cutler, 121 Mass. 96, where a valid mortgagee was summoned as trustee, and allowed himself to be defaulted. The trustee was charged, but the attachment was not dissolved. And it was decided that no scire facias would lie against the trustee; so that the trustee cannot be compelled to make payment. The burden of proof to show the dissolution of the attachment is on the defendant, who must thereby avail himself of the fraudulent act of his vendor. The case of Martin v. Bayley, 1 Allen, 381, is the leading case on this statute. In that case, as in every case which has been decided by this court, there has been always a valid mortgage. In almost every case the action has been brought by the mortgagee for his own benefit.

D.D. Corcoran, for defendant.

The only course open to the parties, if they desired to hold their attachment, was an adjudication by the court as to the validity or invalidity of the mortgage. The voluntary discharge of the trustee operated as a discharge of the 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 property made in this way is valid only and continues so long as proceedings are had in accordance with the provisions of Pub.St. c. 161, §§ 79-83. Flanagan v. Cutler, 121 Mass. 96; Brown v. Neale, 3 Allen, 74, and other cases cited. The discharge of the attachment determined the bailment of the officer.

OPINION

W. ALLEN, J.

Pub.St. c. 161, § 74, provides that personal property of a debtor that is subject to a mortgage, and of which the debtor has the right of redemption, may be attached and held as if it were unincumbered, if the attaching creditor pays to the mortgagee the amount of the debt for which it is liable, within 10 days after the same is demanded. Section 79 provides that personal property of a debtor subject to a mortgage, and being in the possession of the mortgagor, may be attached in the same manner as if unincumbered, and the mortgagee summoned as the trustee of the mortgagor to answer such questions as may be put, touching the consideration of the mortgage, and the amount due thereon. There are further provisions for the trial, between the plaintiff and the mortgagee, of questions concerning the validity of the mortgage, and the amount due upon it, and declaring the attachment void unless the amount found due be paid. It is only under these provisions that mortgaged personal property can be attached, or taken on execution as the property of the mortgagor. In this case the writ and service were such that the attachment of the property in question was valid, under the seventy-ninth section, until avoided by non-payment, if the property was mortgaged to Cobb, who was summoned as trustee; and it was equally valid, if there was no mortgage, as an attachment of unincumbered property. Pub.St. c. 183, § 6; Belknap v. Gibbens, 13 Metc. 471. The case differs from Allen v. Wright, 134 Mass. 347, and 136 Mass. 194. In that case there was no jurisdiction of the trustee, and there was not, and could not have been, such service of the writ as to make a valid attachment.

The only question is whether the attachment was dissolved by the discharge of the trustee, so that it cannot be set up against the debtor and purchaser from him. If Cobb were not mortgagee, his discharge as trustee clearly could not affect the attachment. The only effect of inserting his name in the writ as trustee would be to require service on him, and on the defendant, by copy of the original writ, instead of by a separate summons. In the second of these suits, Cobb, who was summoned because his name appeared as mortgagee in the record of what purported...