Simmons v. Carroll

Carroll, J. This action is brought by the mortgagee of personal property against a deputy sheriff who attached the property covered by the mortgage. Many of the material facts are to be found in Haskell v. Carroll, ante, 424. In the Superior Court the judge found that the mortgage was valid; that the plaintiff made a demand on the defendant for the payment of the amount due under the mortgage, which demand was not complied with; that the failure to enter the writ dated January 31, 1916, made the defendant a trespasser ab initia; that the second writ, dated February 7, 1916, summoning the plaintiff as trustee and returnable in Worcester County, did not give the defendant authority to make the attachment; and that neither on February 7, when the second writ was served, nor on February 21, 1916, the date of the third writ, was the property in the possession of the mortgagor, and found for the plaintiff. The mortgage covers “one horse, one milk wagon, two buggies, two harnesses, ten cows, two hundred fowls including hens, roosters and chickens.” The defendant contends that the mortgage is invalid because the description is too vague. A general description in a mortgage of personal property, such as, “stock, tools and chattels belonging to me, in and about the wheelwright’s shop [431] occupied by me,” has been held not to be so vague as to render a mortgage invalid, although the identity of the property could be determined only by paroi evidence. Harding v. Coburn, 12 Met. 333, 334. It does not appear as part of the description of the property where it was situated when the mortgage, was. executed, but the instrument provides that the mortgagor was not to remove the property from Orange without the written consent of the mortgagee. The auditor found that when the mortgage was given, there was on the mortgagor’s premises property" of the kind described in the mortgage and that there was no evidence that the mortgagor had any other property of a similar kind. On this evidence, although the description was very general, the property was sufficiently identified, and the failure more specifically to describe it did not render the mortgage invalid. Harding v. Coburn, swpra. Goulding v. Swett, 13 Gray, 517. The defendant cannot justify under the first writ dated January 31,1916. That writ was never entered in court and in the absence of a waiver the defendant became a trespasser ab initio. Shapira v. Walker, 225 Mass. 451. There was no error in the demand made on the defendant by the plaintiff, dated February 2, 1916. It was sufficient compliance with the statute, and the defendant by failing to comply with it became liable to the plaintiff. Hanly v. Davis, 166 Mass. 1. The second writ affords no justification to the defendant. As pointed out in Haskell v. Carroll, ante, 424, when the property was attached under this writ and the mortgagee summoned as trustee the property was not in the possession of the mortgagor, but was held by the defendant’s keeper. For the same reason the third "writ does not justify the defendant’s acts. There was no valid attachment under the second and third writs because the property was not in the possession of the mortgagor. Even if the court erred, which we do not mean to intimate, in refusing the request of the defendant that the trustee process returnable in Worcester County was not void, but only voidable, the defendant was not harmed by this refusal; the attachment was void for other reasons, and the precept did not protect him. We do not think it necessary to discuss the remaining requests; there was no error in refusing them. Exceptions overruled.