Wareham Sav. Bank v. Vaughan

• Decision Date: 29 November 1882
• Citation: 133 Mass. 534
• Parties: Wareham Savings Bank v. Francis M. Vaughan
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 534

Wareham Savings Bank v. Francis M. Vaughan

Supreme Court of Massachusetts

November 29, 1882

Plymouth. Appeal from a decision of the Court of Insolvency disallowing a claim of the appellant bank against the estate of Lloyd Perkins, of which the appellee was the assignee. The case was submitted to the Superior Court, and, after judgment for the appellee, to this court, on appeal, upon an agreed statement of facts, in substance as follows:

The appellant recovered judgment against one Lothrop Thomas and Lloyd Perkins, at June term 1880 of the Superior Court, for $ 1210.34, debt or damage, and $ 17.04 costs of suit. Execution issued thereon, and, in July 1880, was duly levied on land as the land of Lloyd Perkins, and which appeared by the levy and the return of the execution to be his estate, but which stood in the name of Almira E. Perkins, his wife. The estate so levied upon was duly set off to the appellant, and seisin and possession thereof duly delivered to it; and the execution, which was returned fully satisfied, was, with the officer's return thereon, duly recorded in the registry of deeds. The appellant received said seisin and possession in full satisfaction of the judgment.

In September 1880, Lloyd Perkins went into insolvency, and in October of that year the appellee was duly appointed assignee of his estate, and accepted said trust. In June 1881, the appellant tendered to the appellee a deed of release of said land, which he refused; and the appellant duly presented said judgment to the Court of Insolvency, to be allowed as a debt against said estate, which was disallowed.

At October term 1881 of the Superior Court, the appellant commenced an action to recover possession of said land from Almira E. Perkins, relying upon its rights under said set-off upon the execution, which action is now pending.

Judgment affirmed.

E. Robinson, for the appellant.

F. M. Vaughan, pro se.

Devens, J. Lord, C. Allen & Colburn, JJ., absent.

OPINION

Devens, J.

The execution which issued upon the judgment obtained by the appellant had, before the insolvency, been levied upon certain real estate as that of Lloyd Perkins, but which in fact stood in the name of Almira E. Perkins. It is the contention of the appellant, that the judgment still constituted a debt upon which it had obtained collateral security only; and that, under the provisions of the Gen Sts. c. 118, § 27, it is now entitled to "release and deliver up to the assignee the premises...