Moore v. Quirk , 105 Mass. 49 ( 1870 )

Gray, J.

Hone of the exceptions taken by the plaintiff to the rulings of the superior court at the trial of this case can be sustained.

1. The want of the stamp required by the internal revenue act of the United States did not affect the validity of the mortgage, i the absence of evidence tending to show that the stamp had been omitted with intent to defraud the revenue. U. S. St. 1866, c. 184, § 9; 14 U. S. Sts. at Large, 142-144. Green v. Holway, 101 Mass. 243. Campbell v. Wilcox, 10 Wallace, 421. The plaintiff does not appear to have asked that any question of such fraudulent intent should be. submitted to the jury.

2. The mortgage was recorded as required by the statutes of the Commonwealth. Gen. Sts. c. 151, §§ 1, 3. The clause of the internal revenue act, which provides that instruments not stamped as therein required shall not be recorded, cannot be construed aa prohibiting the performance by the officers of the Commonwealth of the duties imposed upon them by its statutes, but must be limited in interpretation and effect to records required or authorized by acts of congress, for the same reasons upon which the prohibition in the same clause against giving unstamped instruments in evidence in any court has been decided to be applicable to the federal courts only, and not to extend to the state courts. Carpenter v. Snelling, 97 Mass. 452. Green v. Holway, 101 Mass. 243. People v. Gates, 43 N. Y. 40. Clemens v. Conrad, 19 Mich. 170.

3. The statutes authorizing personal property subject to mortgage to be attached on mesne process against the mortgagor provide that if the mortgagee makes a demand upon the attaching creditor or officer in writing, stating a just and true account of the debt for which the property is liable to him, the attaching creditor shall pay or tender that amount to him within ten days; that, if such payment or tender is not made, the attachment shall be dissolved and the property restored to the mortgagee; that if the mortgagee demands and receives more than his due, he shall be liable to the attaching creditor for the excess, with interest at the rate of twelve per cent.; and, if the attaching creditor pays the amount due to the mortgagee, that he shall be entitled to be repaid it, with interest, out of the proceeds of the goods if sold under the attachment or on execution, and, even if he fails to recover judgment in his suit, shall be entitled to hold the goods until such repayment. Gen. Sts. c. 123, §§ 62-66. Granger v. Kellogg, 3 Gray, 490. If the goods are replevied from the attaching officer, the bond given to him upon the writ of replevin in double the value of the goods takes the place of the goods themselves, if not specifically redelivered to him under a judgment on the replevin for a return; and all sums recovered by him in an action on the bond will be held by bim in trust to pay to the attaching creditor, not only the amount for which he recovers judgment in his suit, but also, whether he does or does not recover such judgment, the amount paid by him to the mortgagee, just as if the goods had been sold on execution. Gen. Sts. c. 143, §§ 12, 15. Mattoon v. Pearce, 12 Mass. 406, 411. Wright v. Quirk, ante, 44. In the present case, therefore, it being admitted that the demand of the defendant as mortgagee, upon the plaintiff as attaching creditor, was in the form required by the Gen. Sts. c. 123, § 63, the facts that the goods had been previously taken by him from the attaching officer upon a writ of replevin, and had been removed out. of the Commonwealth, did not affect his right to make that demand and to receive from the attaching creditor the amount for which the property was liable to him under his mortgage ; and the plaintiff cannot maintain this action, but must look for his reimbursement to the sums which may be recovered by the attaching officer in the suit upon the replevin bond.

Exceptions overruled.