Sullivan v. Lamb , 110 Mass. 167 ( 1872 )

Wells, J.

The authority to attach mortgaged personal property is given, and the mode in which the rights of the mortgagee may be enforced or protected, in such case, is regulated by statute. Under the Gen. Sts. c. 123, § 62,^* * personal property may be attached after the mortgagee has taken possession, as well as before. Howe v. Bartlett, 1 Allen, 29. A valid attachment being made before the foreclosure is complete, the rights of the parties are governed thenceforth by the same and the succeeding sections of the General Statutes. As against the attaching officer or creditor, the mortgagee is bound to pursue his remedy in the mode thus directed, and cannot defeat the attachment by delay and mere lapse of the time requisite for his foreclosure against the mortgagor. To permit it to be so defeated would be inconsistent with the provisions of law authorizing and regulating the attachment of personal property that is subject to a mortgage. The principle of the cases cited, Hobart v. Jouvett, 6 Cush. 105, and Granger v. Kellogg, 3 Gray, 490, extends to attachments made after as well as before commencement of proceedings to foreclose.

The general authority to sell personal property on execution is sufficient to authorize the sale of mortgaged personal property, which has been previously attached on mesne process. It is not to be supposed that a right to attach would have been given, unless with a view to such ultimate sale. It is held that a levy on execution cannot be made in the first instance, without such previous attachment, because that might operate to deprive the mortgagee of the remedy which the statute has provided for him in authorizing the attachment. The question decided in Granger v. Kellogg was raised by a sale on execution.

The property was legally attached in the manner provided by the Gen. Sts. c. 123, §§ 57, 58. The attachment was not dis solved in accordance with the provisions of law relating to attachments of personal property that is subject to a mortgage.

By the sale on execution, the plaintiff acquired title and legal possession. The mortgagee had no right to defeat that title and possession by removing the building without first making a demand and statement of his claim; and his authority is no protection to these defendants in doing so. Whether or not it is too late for him now to make that demand and statement, we have at present no occasion to decide. The defence to this action being insufficient, the judgment of the Superior Court for the plaintiff must be AffirmecL