Roberts v. White

Morton, C. J. It appears that the plaintiff, who is the assignee of a first mortgage of the goods replevied, had, at the time he sued out his writ, a right to the immediate and exclusive possession of the goods. This entitles him to maintain this action, the object of which is to give him in fact the possession to which he is entitled in law. It is difficult to see how any tender after suit brought can avail the defendant; but if it can under any circumstances, it must be a tender followed up by bringing the money into court for the plaintiff’s use. Storer v. McGaw, 11 Allen, 527. Brickett v. Wallace, 98 Mass. 528. No such tender was pleaded or proved, and the ruling of the Supei’ior Court on this subject was sufficiently favorable to the defendant. The court correctly ruled that the defendant could not avail himself of the equitable defence set up in his amended answer. This defence in substance is, that all sums received by the plaintiff for the use of the property replevied, and the amount of any depreciation in the value of the property since he took possession, [259] together with the damages for the taking and detention in this suit, should be deducted from the amount due on his mortgage, and this defendant should be required to pay only the balance, if any, to the plaintiff on return of said property. The answer does not allege that these items, if allowable, will fully pay and discharge the plaintiff’s mortgage, and therefore does not set up facts which would entitle the defendant “ to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action.” St. 1883, c. 223, § 14. But, further, all the facts set up have occurred since this action was commenced, and they have no tendency to prove that at the time of the caption he had not the right to the possession of the goods. The defendant has mistaken his remedy, which plainly was to bring a bill to redeem after the plaintiff gained possession of the goods, in which action he could avail himself of the equities, if any, in his favor. Exceptions overruled.