Ashcroft v. Simmons

Field, C. J. The exceptions recite that the plaintiff “ had a valid title, and the right of possession under a duly recorded mortgage.” The defendant is a constable, who, after the mortgage had been recorded, attached the property, “ as the property of ■ the mortgagor, by virtue of a writ wherein the mortgagor was named as sole defendant.” The court found for the defendant “ solely on the ground that no demand was made upon the defendant by the plaintiff as mortgagee, after the goods replevied were attached by the defendant.” See Pub. Sts. c. 161, §§ 74, 75. _ _ The plaintiff “offered evidence tending to show that previously to said attachment, and subsequently to the execution of said mortgage, the mortgagor had sold said property to one Estes. The court excluded said evidence,” to which the plaintiff excepted. We construe the language of the exceptions to mean that the plaintiff offered evidence that the mortgagor had sold the property subject to the mortgage to one Estes, by a sale [205] which was valid as against the creditors of the mortgagor, so that the property was no longer subject to attachment by the creditors of the mortgagor. Independently of statute, mortgaged personal property could not be attached by the creditors either of the mortgagee or of the mortgagor. Sherman v. Davis, 137 Mass. 132. Prout v. Root, 116 Mass. 410. Badlam v. Tucker, 1 Pick. 389, 399. By statute, “ Personal property of a debtor that is subject to a mortgage, pledge, or lien, and of which the debtor has the right of redemption, may be attached and held in like manner as if it were unencumbered, if,” etc. Pub. Sts. c. 161, § 74. The suit must be against the debtor who has “ the right of redemption.” If the suit is against a person who at the time of the attachment has no interest in the property, the attachment is void, and we see no reason why the mortgagee, if entitled to the immediate possession, cannot replevy the property without demanding payment of his mortgage. If the defendant in the writ has no interest in the property, the attaching officer is a trespasser. Spring v. Baker, 8 Allen, 267. Jordan v. Farnsworth, 15 Gray, 517. See Leonard v. Hair, 133 Mass. 455; Copp v. Williams, 135 Mass. 401; Crocker v. Atwood, 144 Mass. 588. The statutes cited were designed to enable a creditor to attach the interest of one holding an equity of redemption in personal property on a suit against him, and we think they have no application to an attachment of mortgaged property in a suit against a person who has no interest in it. We think the fact offered to be proved was a material fact in the cause. Exceptions sustained.