Wiggin v. Heywood

Gray, C. J. By the statutes of the Commonwealth, all lands of a debtor, and all his rights of redeeming lands mortgaged, may be taken on execution; and all real estates liable to be taken on execution may be attached on the original writ, and “ held as security to satisfy such judgment as the plaintiff may recover,” and, if final judgment is rendered for him, “ shall be held thirty days after the judgment, in order to their being taken on execution.” Gen. Sts. c. 103, § 1; c. 123, §§ 32, 42. The plaintiff, therefore, by his attachment, acquired a> lien on the land of his debtor, subject only to prior conveyances thereof or incumbrances thereon. The sale and conveyance of the land under the power contained in the previous mortgage passed an indefeasible title to the purchaser at that sale, cut off all right of redemption of the mortgagor or any one claiming under him, and prevented any levy of execution upon the land by virtue of an attachment subsequent to the mortgage. Gardner v. Barnes, and Eldridge v. Kingsbury, 106 Mass. 505. By the sale under the power in the mortgage, the land was turned into money, which was to be applied in the first instance to the payment of the> debt and expenses of the mortgagee, and any surplus of which belonged to the same persons as the land before the sale; and their respective rights in the fund were not affected, except so far as relinquished by their own act. Varnum v. Meserve, 8 Allen, 158. Newhall v. Lynn Savings Bank, 101 Mass. 428. No means being provided by the common law or by statute for the attaching creditor to enforce his right in this fund, a case is presented in which a court of chancery, according to its well settled practice, will afford a remedy, to the same effect and upon the same conditions, as nearly as may be, as in proceedings at law in [517] like cases. Dillon v. Plaskett, 2 Bligh N. S. 239, 284; S. C. 1 Dow & Cl. 320. Neate v. Marlborough, 3 Myl. & Cr. 407. Smith v. Hurst, 10 Hare, 30. M'Dermutt v. Strong, 4 Johns. Ch. 687. Burton v. Smith, 13 Pet. 464. Cone v. Hamilton, 102 Mass. 56. The present bill having been filed within thirty days after judgment in the action in which the plaintiffs’ attachment was made, and while the surplus of the money received at the sale remained in the hands of the mortgagee, the Demurrer must be overruled.