Drysdale v. Wax

Holmes, C. J. The proceeding under Pub. Sts. c. 161, § 79, is given only when the mortgagor is in possession of the personal property mortgaged. It is not given when the mortgagee is in possession, even if the mortgage be fraudulent as against creditors. The jury trial provided for by § 81 is a trial of the validity of the mortgage only, not a trial of the fact that the mortgagor is in possession, which is the condition precedent of the right to the jury trial. Porter v. Warren, 119 Mass. 535,537. Other methods are given for reaching goods in the hands of the mortgagee. Pub. Sts. c. 183, § 66; c. 161, § 74. There is 145 nothing in the record of the case at bar to show that the mortgagor was in possession, or even that the plaintiff denied the truth of the trustee’s answer that he held as mortgagee in possession, assuming for the purposes of argument that the plaintiff could deny it. Therefore there is nothing on the record which warranted the plaintiff in demanding a jury trial on the validity of the mortgage and the amount, if anything, due under it. Trustee discharged.