Copp v. Williams

C. Allen, J. It is not contended, on the part of the defendant, that there was any breach of the condition of the mortgage except by his own act of making an attachment of the property. The mortgage itself is not before us, but it appears that it was dated October 10, 1881, and was given to secure the payment of $650 in six months from date, with a condition that the mortgagor should not suffer the property therein described, or any part thereof, to be attached on mesne process. The attachment was made on November 15, 1881. We do not know whether the mortgage contained an express stipulation that the mortgagor should remain in possession till default in the payment of the sum secured, or till condition broken; but, from the fact that she actually remained in possession, and from the absence of anything to show that such possession was wrongful, it may be assumed that her possession was with the consent of the mortgagee; and indeed the defendant’s third request for instructions appears to recognize that this was so, until after condition broken. When a mortgagee of personal property is entitled to the possession of the property, the mortgagor, having no right to the possession as against the mortgagee or his assigns, cannot maintain an action of tort in the nature of trover against the mortgagee or his assigns. Landon v. Emmons, 97 Mass. 37. But, as against all persons except the mortgagee and those claiming under him, the mortgagor in possession may maintain such action. Cram v. Bailey, 10 Gray, 87. Metcalf v. McLaughlin, 122 Mass. 84. Hanmer v. Wilsey, 17 Wend. 91. And in Vaughan v. Thompson, 17 Ill. 78, it was expressly held that a mortgagor in possession of property exempt from execution may'maintain an action against an officer who improperly levies thereon. [405] The three instructions which were first requested were all properly refused. 1. If an officer attaches property which is exempt from attachment, a waiver of the exemption is not established, as matter of law, by the owner’s omitting to claim it as exempt, and .suffering it to be removed without making such claim. These facts, if proved, may tend to show a waiver; but do not necessarily show it. 2. The second instruction requested appears to rest on the supposition that this was a case of confusion of goods. It has been held in several cases that, where goods which are exempt from attachment are so intermingled with other similar goods, which are not exempt, that the officer cannot distinguish them, and so is unable to determine whether the owner intends to claim any portion of the common stock or supply as exempt, it is the duty of the owner who sees the officer about to attach the whole to give notice of his intention to rely upon the exemption authorized by law. In Nash v. Farrington, 4 Allen, 157, provisions were kept both for the purpose of sale and for the use of the debtor’s family; and the officer found the whole supply in the place where the owner kept them for sale. No portion had been set apart for the use of the family, or at the time of the attachment was claimed as held for that use; and it did not appear that the officer had any knowledge or reason to suppose that any portion was intended to be so held or kept. Under these circumstances, the officer was held to be justified in seizing the whole. In Clapp v. Thomas, 5 Allen, 158, the corn that was attached was part of a crop raised by the plaintiff, of which he sold a part, and with a part of which he fed his cattle and swine. He kept the whole of it together, in a building separate from his dwelling, without setting apart any portion of it for the use of his family; and he did not, when it was attached, claim any part of it as exempt. The case was held to come within the doctrine of Nash v. Farrington. See also Stevenson v. White, 5 Allen, 148; Eager v. Taylor, 9 Allen, 156; Woods v. Keyes, 14 Allen, 236; Dow v. Cheney, 103 Mass. 181. This doctrine, however, is not applicable to articles of personal property, each of which is of such a kind as to have a separate identity, and to be easily distinguishable from all others. In the [406] case of animals, for example, it is always understood that it is the duty of the officer to leave in the owner’s possession as many of each kind as are exempt from seizure. Savage v. Davis, 134 Mass. 401. The omission of the owner to make an election which animals he will hold as exempt, is no waiver of the exemption. In the present case, the articles described in the declaration were household furniture, a “black-walnut folding bed, three walnut chairs covered in red plush, one walnut sofa covered in red plush, two large walnut easy-chairs covered in red plush,” and so on, nearly all of the articles being so described as apparently to be easily distinguished and identified. These were, as is recited in the defendant’s.request, in the plaintiff’s house, and were so situated and used as clearly to show that they would, to the specified limit of value, fall within the provision of the statute exempting household furniture from execution. Such articles of furniture may be intermingled with other furniture not exempt, without being confused; they do not fall within the rule declared in Clapp v. Thomas, and other similar cases; and the instruction of the judge, as applicable to them, was correct. If any of the articles were of such a kind as not to be readily distinguishable from others, special attention should have been called to the fact. 3. It was then contended by the defendant, that his own act of attaching the property constituted a breach of the condition of the mortgage, which gave to the mortgagee both the right of property and the right of possession, so that he alone could maintain an action for the attachment, if wrongful. Assuming it to be true that, under the provisions of the mortgage, the plaintiff’s right would cease upon breach of condition, she was in possession, and apparently in rightful possession, at the time when the defendant’s attachment was made. It was his wrongful act which determined her right. He deprived her of her rightful possession, and thereby caused the whole injury of which she complains ; and for this interference with her rightful possession, she may well maintain the action. Finally, the defendant asked for several instructions to the jury, which were given as requested, and of which he now complains. But no such complaint is open to him. Exceptions overruled.