Hallfors v. Gove , 225 Mass. 266 ( 1916 )

Braley, J.

The plaintiffs’ title by purchase to the personal property for the alleged conversion of which they seek damages is derived from a duly recorded mortgage whose validity the defendant does not question. It is familiar law, however, that even if possession for the purposes of foreclosure had been taken, the title to after acquired property would not pass in the absence of a provision in the mortgage to that effect, which is not shown by the record. Blanchard v. Cooke, 144 Mass. 207, 222, 223. It appears that nearly a year had elapsed between the date of the mortgage and the commencement of proceedings to foreclose, during which the business of the bakery had been carried on by the mortgagors, and the jury were warranted upon conflicting evidence in finding as they did in answer to the first question, that “the property described in the plaintiffs’ declaration” had not been mentioned in or covered by the mortgage. It accordingly is plain that the first, second and third requests could not have been given.

But if the answer is conclusive on this issue, the plaintiffs further contend, that having taken possession before the defendant, a deputy sheriff, attached the goods on mesne process in an action against the mortgagors, they had a possessory title sufficient to enable them to recover damages. Shaw v. Kaler, 106 Mass. 448, 449. It was discretionary with the presiding judge whether he would submit to the jury the second question, namely, “Was the property described in the plaintiffs’ declaration the property of the several defendants or any of them mentioned and described in the writ under which they were attached and removed by . . . the defendant in this action?” Hart v. Brierley, 189 Mass. 598,604. The plaintiffs, on whom the burden of proof rested, could not recover unless at the time the goods were attached and removed by the defendant they had therein a complete property, either general or special, as well as actual possession or the right to immediate possession. Bacon v. George, 206 Mass. 566, 570. And the affirmative answer to this question having been fully-justified by the evidence, the fourth and fifth requests became immaterial, while the seventh was properly refused. Shaw v. Kaler, 106 Mass. 448.

The property in question having been in the bake shop, the jury were also rightly instructed that if when seized they found it belonged to the mortgagors, the defendant had the right of removal for which he incurred no liability to the plaintiffs. Platt v. Brown, 16 Pick. 553, 556.

Exceptions overruled.