Stone v. Jenks

• Decision Date: 22 October 1886
• Citation: 8 N.E. 403,142 Mass. 519
• Parties: STONE v. JENKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 519

8 N.E. 403

STONE v. JENKS.

Supreme Judicial Court of Massachusetts, Hampden.

October 22, 1886

COUNSEL

S. Sanders, for defendant.

Defendant's motion to dismiss should have been allowed, (a) because the sureties on plaintiff's bond were never approved. Replevin, being a statute remedy, the plaintiff must observe statute requisites, (Moors v. Parker, 3 Mass. 311 312; Simonds v. Parker, 1 Metc. 508-510; Pub.St. c 184, § 12; Wolcott v. Mead, 12 Metc. 516; Case v. Pettee, 5 Gray, 27; Pub.St. c. 184, §§ 19, 21; White v. Dolliver, 113 Mass. 400-404;) and a defendant is not obliged to accept an informal or unapproved bond, with unknown sureties, (Simonds v. Parker, ubi supra; Claflin v. Thayer, 13 Gray, 459; Putnam v Boyer, 140 Mass. 235; S.C. 5 N.E. 493.) (b) Because the replevied chattels were delivered to the plaintiff before appraisal, and after service on the defendant. Pub.St. c 184, §§ 11, 12; Id. c. 161, § 30; Id. c. 183, § 8; Moors v. Parker, ubi supra; Wolcott v. Mead, ubi supra; Case v. Pettee, ubi supra; Smith v. Whiting, 97 Mass. 316; Hatch v. Kenny, 141 Mass. 171; S.C. 5 N.E. 527; Wells, Repl. §§ 388-391. The chattels not having been sold under the mortgage contract or otherwise, nor the mortgage foreclosed, and no new agreement having been made, or consideration thereof passed, between mortgagor and mortgagee, the mortgagor's right of redemption was unimpaired, and the court erred in refusing to rule as prayed by defendant. Pub.St. c. 192, § 5; Jones, Chat. Mortg. § 695; Buck v. Ingersoll, 11 Metc. 226-233; Bayley v. Bailey, 5 Gray, 505; Putnam v. Rowe, 110 Mass. 28; Burtis v. Bradford, 122 Mass. 129-131; Blodgett v. Blodgett, 48 Vt. 32; Patchin v. Pierce, 12 Wend. 61; Charter v. Stephens, 3 Denio, 33; Hinman v. Judson, 13 Barb. 629; Flanders v. Chamberlain, 24 Mich. 305.

E.H. Lathrop, for plaintiff.

The return, as amended, shows that the officer complied with the statute. It was not essential that the bond be approved. The statute simply relieves the officer from responsibility for the sufficiency of the sureties when the bond is approved. Pub.St. c. 184, § 18; Kennard v. Core, 85 Ill. 248. No request was ever made by the defendant for a new bond, and none was ever ordered by the court under Pub.St. c. 184, § 21. The bond was good. Cady v. Eggleston, 11 Mass. 282; Chandler v. Smith, 14 Mass. 313; Simonds v. Parker, 1 Metc. 508; Wolcott v. Mead, 12 Metc. 516; Smith v. Whiting, 97 Mass. 316. The motion to dismiss because the bond was not approved, is an objection to an alleged defect apparent from the record, and the judgment thereon by the superior court is final. Pub.St. c. 153, § 8; Hamlin v. Jacobs, 99 Mass. 500; Houghton v. Ware, 113 Mass. 49. The mortgagor had the right to relinquish to the mortgagee his right of redemption. He could waive his statutory rights as between himself and the mortgagee, and did do so. No one could object but creditors. The parties in the suits against the mortgagor, whose attaching officer the defendant is, had no cause of action against the mortgagor at the time the mortgage was given, nor when the mortgagee took possession and sold with the consent of the mortgagor. Assuming that the last ruling asked for is abstractly correct, it was not pertinent to this case, because the evidence was uncontradicted, and the case finds that the mortgagor waived his indefeasible right to redeem. Hence the refusal to rule as requested was correct.

OPINION

HOLMES, J.

The bill of exceptions is almost unintelligible. We have construed it to the best of our ability, and, as we construe it, we discover no error in the proceedings.

The first question arises on the motion to dismiss. Some of the reasons suggested for the motion are not supported by our understanding of the amended return. As we understand it, the officer returns that he took the bond on March 16th, summoned the defendant March 19th, had the appraisal March 24th, and on the same day, after the appraisal, it is to be presumed, delivered the replevied chattels to the plaintiff.

The only objection open, and the one mainly relied on, is that the sureties on the bond were not approved by the defendant, or by a master in chancery. But the statute does not require the officer to have the sureties approved, but only to take a bond, with sufficient sureties, before serving the writ. Pub.St. c. 184, § 12. If, however, the sureties were insufficient, the officer would be liable, at least, unless he had exercised a reasonable discretion in deciding upon their sufficiency, Pomeroy v. Trimper, 8 Allen, 398, 401, and case cited; 1 Saund. 195, note 3; Jeffery v. Bastard, 4 Adol. & E. 823; People v. Core, 85 Ill. 248; Hindle v. Blades, 5 Taunt. 225; Rous v. Patterson, 16 Vin.Abr. 400, "Pledge," H, pl. 4; S.C.Bull.N.P. 60; 2 Inst. 340. The statute, therefore, after having got through with what the officer must do before service, goes on to provide (section 18) that "sureties on a replevin bond may be approved by the defendant in writing, or by a master in chancery, and, when so approved, the officer who serves the writ shall not be responsible for the sufficiency of such sureties." Plainly, this does not impose a new condition upon the plaintiff's right to maintain his action, but is intended to give the officer a way to relieve himself of the liability to which we have referred.

A difficult question would be raised if it were alleged, which it is not, that the sureties were insufficient. If their insufficiency would in any case affect the plaintiff's right to maintain his action, which we do not intimate, it may be that the approval of them under section 18 would also relieve the plaintiff from the objection.

The plaintiff claimed title on the ground, as we understand it that, after he had taken possession of the chattels under a mortgage, the mortgagor made a parol release or gift to him of the equity. The defendant asked the court to rule that "a mortgagor of chattels has an indefeasible right to redeem, as between himself and the mortgagee, unless he has parted with such right for some new consideration, or unless the mortgage has been duly foreclosed." ...