Jackson v. Kimball , 121 Mass. 204 ( 1876 )

Endicott, J.

The original attachment by the defendant, in the suit of Colcord against Samuel H. Jackson, was lawful, and the plaintiff was duly summoned as trustee. Gen. Sts. c. 123, §§ 67-71. While that process was pending against the plaintiff as trustee, the defendant’s refusal to deliver the property attached on the demand of the plaintiff was proper, and no action for conversion could be maintained against Mm. Jackson v. Colcord, 114 Mass. 60. After Colcord discontinued against the plaintiff as trustee, no action could be maintained against the sheriff for conversion of the property by reason of his refusal to deliver before the discontinuance; that refusal was proper, because his possession was at "hat time lawful.

An officer does not become a trespasser ab initia, because the plaintiff in the writ, on which the attachment is made, fails to maintain his action against the party whose property is attached. The original seizure and detention do not become unlawful by the failure of the action; and the mere possession of the property by the officer, after the action has failed, is not a conversion. .It is then his duty'to return it, and it is only when he unreasonably neglects, or on demand refuses to do so, that he commits a tort against the real owner. It may be that the real owner, after the attachment is dissolved by the failure of the original action, can maintain an action for money had and received, without a demand, when the property has been sold; but he cannot maintain an action of tort for the conversion, except by reason of some refusal or neglect of the officer to deliver it after the dissolution.

In this action, no evidence appears to have been offered of any refusal to deliver after.Colcord discontinued against the plaintiff as trustee. The plaintiff relied solely on the original attachment and the refusal of the officer to deliver the property, while the action was pending against him, and the subsequent discontinuance of the same, as evidence of conversion. But the subsequent discontinuance did not make the detention up to that time unlawful, for the reasons before stated.

The plaintiff therefore is in this position: She could not, before the discontinuance against her as trustee in the original action, maintain an action against the officer for the attachment and refusal to deliver, because his detention of the property was then lawful; Jackson v. Colcord, ubi supra; and that detention before the discontinuance did not become unlawful merely by reason of the subsequent discontinuance ; so that no action could have been at any time maintained for any act alleged to have been done by the officer before the discontinuance. Ho other act . was alleged in the declaration or put in evidence.

The statute authorizing the attachment of personal property subject to a mortgage, and providing that the mortgagee may be summoned as trustee of the mortgagor, is not contrary to the Declaration of Rights, art. 15, on the ground that it denies to the mortgagee the right to have the validity of the mortgage determined by a jury. Gen. Sts. c. 12S, §§ 67—71. By the provisions of these sections, the validity of the mortgage may be tested by the examination of the mortgagee as trustee. If the attaching creditor denies its validity, the question must be tried by a jury. The mortgage therefore can be declared invalid only upon the examination of the mortgagee, or by the verdict of a jury. If other facts, not stated or denied by the trustee, are alleged, a trial by jury is provided for in the Gen. Sts. c. 142, §§ 11,12. JExceptions overruled.