Hanson v. Herrick

Colt, J. The objection that the certificate upon the back of the mortgage was not competent evidence to prove that the mortgage was duly recorded is not now relied upon. And the request for instructions relating to the duty of the plaintiff to ooint out and identify the goods claimed by him is also waived. The plaintiff’s -demand upon the attaching officer was sufficient in form and substance. It was, in the words of the stab [326] ute, a just and true account of the debt or demand for which the property was liable to him. Gen. Sts. c. 123, § 63. Evidence of the actual consideration of the mortgage note was properly admitted. It was the only way in which the account stated could be shown to be just and true. The actual consideration for a written promise may always be shown by paroi, without violating the rule which excludes such evidence when offered to vary or contradict the writing. The evidence showing the actual extent of the plaintiff’s liability upon the bond to secure which the mortgage was given was plainly competent. Haskell v. Gordon, 3 Met. 268. Hills v. Farrington, 6 Allen, 80. But the ruling of the court that the question of fraud under the bankrupt act of the United States was not open to the defendant in this action cannot be sustained. The defendant distinctly sets forth in his answer that the property claimed by the plaintiff under his mortgage was attached by his deputy upon a writ against the mortgagors, who then had possession of it; that afterwards, and before the plaintiff’s demand, the mortgagors were declared bankrupt in the United States district court; that their assignee in bankruptcy, before the commencement of this action, took possession of the mortgaged property so attached; and that the mortgage of the plaintiff was void under the provisions of the bankrupt act, as a fraudulent preference of creditors. This in effect sets up a title in another to the property, and possession taken under it, which is in some sense paramount to the plaintiff’s title. And that title the defendant had a right to have passed upon in this action. It is not a question of jurisdiction, but of title. The United States courts have exclusive jurisdiction of proceedings in bankruptcy, but all questions of title to property derived through such proceedings are within the jurisdiction of the state courts. It is a familiar principle, that the defendant in an action of trover may always show, in mitigation of damages, especially when the taking or the conversion was not wilful, that the property has gone from his possession, by process of law or otherwise, to the plaintiff, or to his use, or to a party who as against [327] the plaintiff had the better title to it. Perry v. Chandler, 2 Cush. 237. Pierce v. Benjamin, 14 Pick. 361. Yale v. Saunders, 16 Verm. 243, note. As the case must go to a new trial upon the ground above stated, it is proper to add that it is not intended to decide that the evidence offered can only be competent in mitigation of damages. Property mortgaged may be attached and held in like manner as if unincumbered. And the mortgagee’s right of action against an attaching officer of the property, in these cases, arises only upon a failure of the officer to pay or tender to the mortgagee the amount of his claim within ten days after the same is demanded. Gen. Sts. c. 123, §§ 62, 63. If therefore it shall appear that before the expiration of the ten days the property was surrendered by the officer to the superior title of the assignee, then the point may fairly arise and will be entitled to consideration, that the plaintiff never had a right of action and that the defence is good in bar. Exceptions sustained.