Johnson v. Sumner , 42 Mass. 172 ( 1840 )

Shaw, C. J.

This was an action against the late sheriff, for a quantity of lumber attached by one of his deputies, and claimed by the plaintiff as mortgagee. We had supposed, during the argument, that in form it was trespass de bonis asportatis; but on reference to the declaration, and also to the report, it ap pears to be trover, with a special count in case, on the facts. No question is made respecting the form of action, and nothing is open, except the points reserved on the trial.

Before proceeding to consider the exceptions taken by the defendant’s counsel, it may be proper, in order to prevent misconception, to make a remark upon the terms of the plaintiff’s notice. He claims to hold the boards by virtue of a mortgage bearing date November 18th, 1836, “ given by said Frost to secure to me certain sums of money due to me from him, and to save me harmless, &c.” We at first supposed, that this was the form of the condition of the mortgage, viz. to pay certain sums of money, and to indemnify against actions, liabilities as surety, &c. Had such been the condition of the mortgage, it is very doubtful whether the goods could be specifically attached, by virtue of the Rev. Sts. c. 90, §§ 78, 79. All the provisions of this statute seem framed on the assumption, that the property stands pledged or mortgaged for the payment of money, and nothing more. The officer or attaching creditor, therefore, can discharge the lien by the payment of the money due ; but the condition being to indemnify, or perform some other collateral act, there seems no mode indicated by which the condition can be performed.

This is strengthened by another provision in Rev. Sts. c. 109, regulating the trustee process. It is provided, § 25, that if the goods, in the hands of the person summoned, are mortgaged or pledged for the payment of any debt, the attaching creditor may pay or tender the amount due, and thereupon the trustee shall deliver the goods. And by § 26, if the goods, in such case, are held for any purpose other than to secure the payment of money, and the condition or thing to be performed is such as can be performed by the attaching creditor, the court may make an order for the performance of it by him, and thereupon the trustee shall deliver the goods, &c.

Taking both modes of attaching, and the statute provisions applicable to each, we are strongly inclined to the opinion, that when goods are mortgaged to secure the performance of any other obligation than the payment of money, the only mode of attaching the property is by summoning the mortgagee as trustee. We make this suggestion, lest it might be inferred from the notice, that the condition of the mortgage, in this case, was to indemnify the mortgagee as well as to pay money, and yet that the goods were specifically attached.

But upon a reference to the mortgage, it appears that the only condition was, to pay a large sum of money, and so it seems to have been understood at the bar ; and the question was, what sum of money, or rather what part of such large note was due at the time of the attachment. Whether the mortgage could be available for any thing but money due to the plaintiff, it is not now necessary to inquire ; because the amount of money due to the mortgagee, independent of liabilities, exceeded the value of the mortgaged property, as found by the jury.

Coming then to the questions reserved at the trial, several of them are waived, and the only one relied upon is the suffic'ency and seasonableness of the notice, given by the plaintiff to the attaching officer and creditor, of the amount due on the mortgage. The exception taken at the trial was, that the precise sum due was not stated ; that is, a sum neither more nor less than the sum due; but that the amount demanded was larger than the amount due.

As it applies to the sum due to the plaintiff in cash, the sum was proved as stated. Had the mortgage been made on condi-1 tion to secure several demands described in general terms, we think a statement of the result, composed of the aggregate of several distinct demands, would not have been a just and. true account, within the meaning of the statute. But this was the part remaining due on a larger note, for which the mortgage was made ; and we think it was sufficient to state the single sum to which the debt was reduced by payments or otherwise.

As to the amount for which the plaintiff was liable as surety, guarantor, or indorser, the opinion of the court is, that it was not for a larger sum than the amount due, and so not open to the exception taken to it. The account is to be of the debt or demand, for which the property is liable to the mortgagee ; and such an account may well include interest as well as principal. And such including of interest would not render the account untrue ; and as the mortgagee renders himself liable for a penalty, if he states his account for more than is due to him and receives it, we think he may understate the amount of interest, when the securities are not in his own hands, and when he has not the means of computing the interest exactly, without rendering his account subject to the imputation of being untrue. In the present case, the amount stated in the demand and account was less than the amount actually due, computing the interest on the notes.

As to. the exception, that the demand was not made within reasonable time, we have felt much more difficulty. Somewhat more than a year elapsed, from the attachment to the time of the last and effectual demand. If there were nothing to account for and explain this delay, we should think it was not made within reasonable time. But there are several circumstances tending to excuse it. There was an early, though an informal demand, but sufficient to inform the officer and attaching creditor of the existence of the plaintiff’s mortgage and put them on inquiry ; and it was stated at the bar, and known to some of the court, that a former action was brought. The action, in which the attachment was made, was still pending, when the last demand of the piamtilF was made. On the whole, under the circumstances of the case, the court are of opinion, that the demand of the plaintiff was made within reasonable time.

The point of interest we think is easily disposed of. It was argued that the defendant was chargeable as a trespasser ab initio, and so should be liable for interest from the first taking. And from the terms of the report, we are inclined to think that the case was presented to the court as a trespass, because the defendant contended that if the plaintiff was entitled to recover, he could lawfully claim interest only from the last demand, and'not from the day of the supposed tortious taking ; but the court ruled otherwise. But we think the form of the action is decisive. It is trover, and charges no tortious taking. The conversion relied on, is that following the last and effectual demand in April, 1838. And then the well settled rule of damages in trover applies ; the value of the goods at the time of the conversion, and interest from that time. Kennedy v. Whitwell, 4 Pick. 466. The verdict is to be amended by computing the interest from that demand ; after which, judgment is to be rendered on the verdict for the plaintiff.