Colby v. Bissell

Braley, J. It is the object of R. L. c. 102, §§ 51-55, whatever paper form the transaction may assume, to protect borrowers of money, where the amount is less than $1,000, from the payment in any event of interest in excess of eighteen per cent. But, if security is given by the mortgaging of household furniture, § 53 declares, that the mortgage shall be invalid unless it sets forth the actual transaction with substantial accuracy. If there is more than one owner, no distinction is recognized in the statute as to the nature of the title of the mortgagors, which may be either joint or several. This provision is not in the nature of an exemption similar to that created by R. L. c. 167, § 38, and c. 177, § 34, for the benefit of householders and mechanics in the attachment of personal property, and where in the construction of the statutes, of which these provisions are re-enactments, it has been held that the privilege being 317 personal to the debtor is lost if he chooses to make the title joint. Pond v. Kimball, 101 Mass. 105. But it is part of a general legislative policy for the uniform protection of the class of borrowers described, and the prohibition not being within the control of the mortgagor, remains in force apart from any community of title, if the property mortgaged falls within the description named in the statute. Washington National Bank v. Williams, 188 Mass. 103, 107, and cases cited. The facts, upon which, as stated by him in a condensed form, the presiding judge ruled that the bill should be dismissed are substantially undisputed. The plaintiff Colby, who previously had kept at the home occupied by himself and wife a restaurant where meals were served, and rented rooms fitted with common household furniture to lodgers, formed a copartnership with the plaintiff Griffith, and the firm continued the business. If there had been no transfer, under the decision of Glidden v. Nason, 186 Mass. 140, the furniture in the living rooms of the family were within the statute. But having become partnership property, its character is to be determined by the nature of the use to which it was subsequently put, rather than by the mere quality of the title. Day v. Lawrence, 167 Mass. 371, 373. It was contemplated, after joint ownership, that the premises should be used in their business of keeping a hotel, and having been occupied for this purpose, the distinctive home of the family of Colby as it had before existed was necessarily surrendered, for upon the evidence ■ and the finding it is plain, that if required, some or all of their rooms would have been relinquished for the accommodation of guests, or lodgers. If the rooms were their dwelling to which they otherwise might have retained the right of exclusive possession, yet the plaintiffs maintained a hotel, and the furniture in them became a part of the partnership property. By the change, the continued use of the furniture ceased to be for household and residential purposes, and the mortgage, even if it failed to set out the actual terms or amount of the loan, not being within the statute, was valid. Becree affirmed.