Mills v. Sullivan , 222 Mass. 587 ( 1916 )

Pierce, J.

The plaintiff by virtue of his writ had actual possession of and a special property in the goods when they were taken from him by the defendant. Ladd v. North, 2 Mass. 514, 518. Save as justified by law the seizure by the defendant was a trespass and he became a trespasser ab initia upon his failure to enter in court the replevin writ. Hanly v. Davis, 166 Mass. 1.

Presumptively the plaintiff became entitled to recover against the defendant in an action of conversion the full value of the goods. Hanly v. Davis, supra. The goods had been mortgaged by the defendant in the writ by virtue of which the plaintiff, in his capacity of deputy sheriff, had attached them, to a creditor to secure the payment of a debt admitted to be larger in amount than the value of the goods. On the day of the execution and delivery of the mortgage the mortgagor released to the mortgagee his equity of redemption. The mortgagee took possession of the property and placed the recent owner and mortgagor in the custody and charge of the goods to hold as his agent. While they were in the custody and charge of the former owner the plaintiff, by virtue of his office, attached them under a writ wherein an admitted creditor was named as plaintiff and the former owner appeared as defendant. The defendant in the case at bar delivered the goods taken on a replevin writ to the mortgagee immediately after taking them from the possession of the plaintiff.

The plaintiff contends that the transaction so far as it relates to the stock in trade was a fraudulent sale as against creditors of whom the plaintiff named in the original writ was admitted to be one under the sales in bulk act, St. 1903, c. 415.

By the express words of the agreed statement of facts we are not permitted to draw inferences of fact "as to the purpose with which the mortgage and release aforesaid were executed.”

It follows that we cannot infer that the mortgage and release were executed in bad faith with a purpose to circumvent the provisions of the statute of 1903, c. 415, but the effect of the mortgage and release was to transfer the absolute legal title to all the property and if allowed to be good to defeat the statute.

We cannot give countenance to any device calculated to produce such result.

It follows that a title thus acquired is voidable by creditors.

The mortgage is not within the terms of the act. Wasserman v. McDonnell, 190 Mass. 326, and, as the mortgage debt is admitted to be greater than the value of the property, the plaintiff is permitted to recover no more than nominal damages, Squire v. Hollenbeck, 9 Pick. 551, if the mortgagee before the attachment has recorded the mortgage or has taken and retained possession of the mortgaged property in compliance with the requirements of R. L. c. 198, § 1.

It is not contended that the mortgage was recorded or that any possession was taken and retained by the mortgagee as such unless the taking of possession “under a claim of ownership” coincidentally following upon the delivery of the release be deemed to be also a taking of possession as mortgagee. We do not think it can be so considered and this conclusion renders it unnecessary to determine whether leaving the mortgagor in charge was a compliance with the requirements of R. L. c. 198, § 1, as to possession and retention of possession.

The conveyance was not valid against the attaching creditor as a mortgage or as an absolute transfer of title.

The entry should be

Exceptions sustained.