Boynton v. Warren

Colt, J.

Unless the defendant can justify under his attachment, the plaintiff must prevail. As mortgagee of the property, having the right of immediate possession, he may maintain this action against a trespasser. In order to continue his special title in the property taken, an attaching officer must retain the actual or constructive possession of it. A voluntary surrender or abandonment of the property releases the attachment. Bag *174 ley v. White, 4 Pick. 397 . Sanderson v. Edwards, 16 Pick 144. Esson v. Tarbell, 9 Cush. 412 . The question presented is, whether the evidence submitted was sufficient in law to justify the finding, as matter of fact, that there had been an abandonment in this case. A jury trial was waived, and the question left to the judge; but his findings of facts submitted to him are to be treated like the verdicts of the jury. It is only when the evidence is all reported and has no tendency to support the legal propositions necessary to sustain the verdict of the jury or the finding of the judge, that this court can interfere on exceptions. The question is not that which is presented on a motion for a new trial because the vérdict is against the weight of evidence Forsyth v. Hooper, 11 Allen, 419 . Cheever v. Perley, Ib. 587.

It seems to us that there was evidence submitted from which a jury might legally find, under proper instructions from the court, that there was an abandonment of the property attached by the defendant Warren. The articles were never removed, but were left in the custody of a person who left the house every night, leaving no one in charge. The defendant was notified to remove his keeper, and forbidden to remove the goods, and on the following day the keeper left, leaving no one in charge and giving no intimation as to his purpose in leaving or when he should return. It would seem to have been the duty of the defendant, after the notice, to proceed at once to remove the goods from the premises of the defendant in the suit, where they were left without her consent. It is, certainly, as the defendant claims, not necessary that the officer or keeper should remain constantly in immediate contact with or custody of the property attached; nor need his possession always be actual. It is sufficient if he has the constructive possession. But, taking all the circumstances into consideration, we see no reason for disturb ing the findings of the court below.

The present plaintiff, as mortgagee, was summoned as traste in the suit in which the property was attached ; and that suit, r seems, was still pending and the trustee not discharged whe: this action was brought. The defendant now claims that thij action is prematurely brought. ' The provisions of Gen. Sts. *175 c. 123, §§ 67-71, establish a procedure by which creditors may avail themselves of mortgaged personal property of their debtors, and at the same time test the validity of the mortgage. Before this statute, no person could be charged as trustee who had no goods or effects in his possession. The mortgaged property was indeed attachable, subject to the right of the mortgagee to demand payment of the amount due on his mortgage; but the whole proceeding was quite different from the one introduced by the new statute. Having commenced by attaching the mortgaged property and summoning the mortgagee, the creditor must pursue his remedy in the mode pointed out by this statute. It has been held that by discharging the supposed trustee he vacates the attachment of the property, and entitles the mortgagee to the possession thereof. Martin v. Bayley, 1 Allen, 381 . It is not necessary to decide what effect the abandonment of the attachment of the specific articles mortgaged may have upon the question of charging or discharging the supposed trustee. If discharging the trustee vacates the attachment, then abandoning the attachment would seem to operate to discharge the trustee, by parity of reasoning. At all events, the plaintiff, it seems to us, was, immediately upon the abandonment, entitled to the possession as against this defendant, and the action was not prematurely brought. Exceptions overruled.