Wilson v. Crooker

• Decision Date: 06 January 1888
• Citation: 145 Mass. 571,14 N.E. 798
• Parties: WILSON v. CROOKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 571

14 N.E. 798

WILSON v. CROOKER.

Supreme Judicial Court of Massachusetts, Norfolk.

January 6, 1888

COUNSEL

J.E. Tirrell, for plaintiff.

OPINION

The agreement was made before any attachment was made, and the parties had a right to agree as to what should go on the mortgage as goods were sold not covered by the mortgage. The notice was sufficient in description of property, and stating amount due, and for defendant to identify the mortgage. The demand was for the exact amount due. The demand was for the horses attached and embraced in the mortgage.

J.L Eldridge, for defendant.

The action cannot be maintained. The mortgage was invalid, and its record without effect. The rate of interest was not stated therein. Reference for a material part of the mortgage contract is made to the note. If material parts of a mortgage contract can be shown by reference to unrecorded papers subject to alteration and substitution at pleasure, the object of the statute requiring registration is defeated, and the door opened to fraud. The evidence of an agreement, made at or before the assignment, for a sale by Quinlan, and the appropriation of the proceeds, was incompetent. Clark v. Houghton, 12 Gray, 41. The conversion relied on was the attachment of the horses. Upon the declaration and evidence the plaintiff could not in any event recover for more than one horse. The demand was invalid and insufficient as to both attachments; if not, then as to one. The defendant was the agent of each attaching creditor, and was entitled to a demand and notice for each creditor. See cases of the successive attachments of the same property. But one was proved, and it referred to one writ and attachment. Howe v. Bartlett, 1 Allen, 29; Macomber v. Baker, 3 Allen, 241; Wheeler v. Bacon, 4 Gray, 550. The plaintiff, if he did not know that there were two attachments of different horses, should have inquired of the defendant, and got the facts. Had both attaching creditors paid the sum demanded, the plaintiff would have received $984. The demand and notice tended to mislead and prejudice the attaching creditors. It did not state the rate of interest. The record to which reference was made did not state the rate. The demand did not state that six months' interest had been paid in advance, or that it had not been paid. These facts made known to them might have induced them to pay the $492. It did not state that goods other than the horses were covered by the mortgage; that a part had been sold; the name of the mortgagor; the date of the mortgage; and that the plaintiff was an assignee. A reasonable examination of the record would not have discovered these facts. It did not state a just and true account. The proceeds of the sale could only be applied to the mortgage debt. The appropriation made was not made before the attachments, and there was no evidence of an actual and effectual one. The $200 applied to the mortgage debt would have left less than $492 due. The mortgage security, the terms and conditions of the mortgage, the mortgage and assignment, were waived, discharged, and rendered void by the agreement that Quinlan might take and sell the mortgaged goods, and then give to the plaintiff the proceeds. Briggs v. Parkman, 2 Metc. 258; Rickerson v. Raeder, 40 N.Y. 492; Ford v. Williams, 13 N.Y. 577; Delaware v. Ensign, 21 Barb. 85.

KNOWLTON, J.

The plaintiff held a mortgage covering two horses, which are alleged to have been converted by the defendant. The defendant attached them as the property of the mortgagor, one upon a writ in favor of one creditor and the other upon another writ in favor of a different creditor. The plaintiff could protect his rights against each attachment by demanding of the defendant payment of his claim, and stating "in writing a just and true account of the debt or demand for which the property was liable to him," in accordance with the provisions of Pub.St. c. 161, § 75.

The purpose of the statute in requiring an account is to enable the attaching creditor to definitely know what the mortgage secures. The information called for is important, not merely as fixing a sum to be paid, but also as assisting the creditor in determining whether the mortgage was made in good faith, and whether the debt, demand, or obligation will be valuable to him if he retains his attachment and takes to himself the benefit of the mortgage, as he has a...