Scigliano v. Palmer

Bealey, J. By the express condition of the mortgage, which had been duly recorded, the attachment of the mortgaged property consisting of “one horse, one barrel wagon and one set of harness,” in the action against the mortgagor entitled the mortgagee as between himself and the mortgagor to immediate possession for the breach. Donahoe v. Gillon, 167 Mass. 24. But the attachment having been valid, and no demand under R. L. [557] e. 167, § 69, having been made by the plaintiff on the attaching creditor or on the defendant as the attaching officer, the voluntary release of the attachment if followed by a delivery of the property to the mortgagor, or to the person to whom by consent of the mortgagee it had been let and in whose possession it was when attached, would have discharged the defendant from any liability. Cousins v. O’Brien, 188 Mass. 146, and cases cited. It appears, however, that after the dissolution the defendant, although requested by the plaintiff to return the property to the place from which it had been taken, left it subject to the order of the mortgagor or of the lessee in the control of the person he had appointed keeper. The plaintiff, although having the title with the right to foreclose when the attachment had been terminated, could not enter upon the premises of the keeper, who was neither the mortgagor nor the lessee, but the defendant’s agent, and take and remove the property without, committing a trespass. Robinson v. Sprague, 125 Mass. 582. Donahoe v. Gillon, 167 Mass. 24. Munro v. Stowe, 175 Mass. 169. Kennedy v. Hoyt, 197 Mass. 361. R. L. c. 167, § 43. And the present case is plainly distinguishable from cases where, the attachment being in force, the only remedy of the mortgagee, even if there has been a breach but he has not yet taken possession for the purpose of foreclosure, is to make a demand upon either the officer or attaching creditor with a just and true account of the amount of the indebtedness, which, if not complied with within ten days, dissolves the attachment. R. L. c. 167, §§ 69, 70. Robinson v. Sprague, 125 Mass. 582. Wilson v. Crocker, 145 Mass. 571. Ashcroft v. Simmons, 151 Mass. 497. Hanly v. Davis, 170 Mass. 517, 518. The failure of the defendant to restore the property as requested amounted under the circumstances to an unlawful detention and conversion for which he is liable in damages measured by its fair market value. Edmunds v. Hill, 133 Mass. 445. Raymond Syndicate v. Guttentag, 177 Mass. 562. Hanly v. Davis, 166 Mass. 1. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 506. Under the terms of the report judgment is to be entered for the plaintiff in the sum of $135. So ordered.