Murphy v. Galloupe

Morton, C. J. It is settled in this Commonwealth, that the interest of a mortgagee in personal property mortgaged to him is not subject to attachment. Prout v. Root, 116 Mass. 410. By our statutes, the mortgagor’s interest is liable to be attached and taken on execution, if the attaching creditor pays the mortgagee the amount for which the property is liable to him within ten days after due demand. Pub. Sts. c. 161, § 74. If the same is not paid or tendered, the attachment is dissolved. Pub. Sts. e. 161, § 75. The interests of the mortgagor and of the mortgagee in the mortgaged property are not joint, like the interest of partners; they have separate and adverse interests, and a plaintiff cannot, by joining them as defendants, in a suit upon a joint' debt, enlarge the statutes of attachment, and make the interest of the mortgagee attachable. In the case at bar, it follows that the attachment made by the defendant was a valid attachment of the interest of the mortgagors only. As the defendant, upon due demand being made, failed to pay or tender the debt due the mortgagee and secured by the mortgage, his attachment was dissolved, and the mortgagee is entitled to maintain this action. Exceptions overruled.