Goulding v. Hair

A creditor of a mortgagor of personal property caused it to be attached while in the possession of the mortgagor on a writ in which the mortgagee was summoned as trustee, under the Gen. Sts. c. 123, § 67. The mortgagee filed a general answer, denying that he had any goods or credits of the defendant in his possession, but not disclosing his mortgage, and was thereupon discharged by the court, without objection by the creditor and without being further examined. The attaching officer duly sold the goods on mesne process before the trustee was discharged, and, after said discharge, the officer levied an execution issued in said action upon the proceeds of the sale, and paid them over to the creditor. Held, that the discharge of the trustee operated as a dissolution of the attachment; and that the mortgagee might maintain an action against the attaching officer for the proceeds of the sale. Held, also, that it was no defence that the defendant had made a second attachment of the same property on a writ in favor of another creditor of the mortgagor in an action in which the mortgagee was summoned as trustee, which action was pending at the time the present action was brought, and in which the trustee bad not been charged or discharged.

Contract for money had and received by the defendant to the plaintiff’s use. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, on an agreed statement 'of facts, in.substance as follows: On June 12, 1880, Robert P. Jordan of Worcester made a mortgage of his stock in trade and the fixtures of his shop to the plaintiffs, to secure the payment of his promissory note for $315, which mortgage was duly recorded. Subsequently, and while Jordan was in possession of said stock in trade and fixtures, and the plaintiffs held the mortgage, George Bassett, on July 31, 1880, brought an action against Jordan to recover the amount of a debt due him from Jordan, and the defendant in this action, a constable of Worcester, made an attachment of said stock and fixtures, and summoned the plaintiffs in this action as trustees and mortgagees of said Jordan. This trustee writ was in the usual form, and was returnable on August 7, 1880. The authority of the defendant to make said attachment and to summon said mortgagees as trustees, and the validity of said mortgage, are not questioned. Said mortgage remains unpaid and is overdue. During the pendency of the action of Bassett against Jordan, the stock and fixtures so attached were on August 19, 1880, duly sold on mesne process by said attaching officer for $410; and the net proceeds of said sale were held by said officer upon said attachment. On August 21, 1880, Bassett obtained judgment against Jordan in said action, execution issued thereon on August 30, 1880, and said officer levied upon the proceeds of sale, and, after deducting his fees, paid over to Bassett’s attorney the sum of $305.48; and on September 13, 1880, returned said execution in part satisfied, a balance being still due on said judgment. The regularity of the proceedings of said sale is not questioned. On August 7, 1880, the return day of the writ in said action, the plaintiffs in the present action, knowing that the property of said J or dan covered by said mortgage had been attached in said action and was held upon attachment therein by the defendant, appeared by counsel and filed their answer under oath, setting forth that at the time of the service of the plaintiffs’ writ upon them, they had no goods, effects or credits of Jordan in their hands or possession. No other or further answer was made by. said mortgagees, and no questions were put to them by the court or by the plaintiff touching the consideration of the mortgage or the amount due thereon. On August 21, 1880, on motion of the attorney for said mortgagees and trustees, which was not opposed or consented to by Bassett’s attorney, these plaintiffs were discharged upon their answer, with costs. After the officer had made his levy on said execution, and had paid over the proceeds of said sale as aforesaid, said mortgagees, on September 13, 1880, first demanded of the attaching officer the amount claimed by them to be due upon their mortgage note, by serving upon Mm a demand therefor in writing, stating therein that they held a mortgage from Robert P. Jordan upon said property attached by said officer to secure said note. On July 31, 1880, Habecker and Killain brought an action against Jordan to recover a debt due them from him, by writ returnable on August 7, 1880. Upon this writ, a second attachment was made by the defendant upon said mortgaged property, and the plaintiffs in the present action were summoned as mortgagees and trustees of Jordan. They appeared by counsel in said action, and, knowing of the attachment of the mortgaged property, filed an answer similar to that in Bassett against Jordan, not disclosing their mortgage or the amount claimed to be due thereon, or any claim upon the property attached. On September 15, 1880, said mortgagees filed an amended answer, after this action was brought, disclosing their mortgage and the amount alleged to be due thereon, and thereupon said action, as between said Habecker and Killain and these plaintiffs, was, on October 26, 1880, continued to await the result of the case at bar, judgment having been entered in favor of Habecker and Killain against Jordan for the amount declared for. If, on these facts, the plaintiffs were entitled to recover, judgment was to be entered for them in the sum of $315, and interest from the date of the writ; otherwise, judgment for the defendant.