Commonwealth v. Damon , 105 Mass. 580 ( 1870 )

Wells, J.

By the Gen. Sts. c. 161, § 62, a mortgagor of personal property, who sells or conveys it “ without the written consent of the mortgagee, and without informing the person to whore he sells or conveys that the same is mortgaged,” is made liable to punishment as for a criminal offence. The ruling of the court below was, that the defendant might be convicted unless both requisitions of the statute had been complied with ; that is, that to justify such a sale the mortgagor must not only have the written consent of the mortgagee, but must also inform the purchaser of the existence of the mortgage.

We think this was contrary both to the language and to the reason of the statute. If the mortgagor has the written consent of the mortgagee, he may convey a perfect title to the purchaser; and neither the mortgagee nor the purchaser will suffer injury from such a sale. If he has no such consent, but discloses to the purchaser the state of his title, the purchaser will not be deceived; the sale will operate simply to transfer his right in the property; and that he may properly do, notwithstanding the existence of the mortgage.

By the terms of the statute, construed grammatically, the mortgagor is punishable only when there is an absence of both requisites therein provided. The jury have not found the absence of both, in the sale for which the defendant was indicted ; but returned their verdict of guilty under instructions which authorized them to do so, without negativing the defendant’s claim that he informed the purchaser of the mortgage.

Exceptions sustained.