Littlefield v. Kimball , 17 Me. 313 ( 1840 )

The opinion of the Court was by

Shepley J.

The debtor having made a second mortgage of the premises to the plaintiffs, after the attachment and before the sale of the equity of redeeming the first mortgage, all the estate more than sufficient to satisfy the lien thus created, passed to the plaintiffs; and their property cannot be appropriated to the use of the debtor or his other creditors, unless the plaintiffs have forfeited their rights by neglecting to make them known in such a manner as to protect them. The officer had a second execution in bis hands, to which he was by law obliged to apply the surplus, if the money belonged to the debtor.

The plaintiffs had caused their mortgage to be recorded; but it has been decided, that it was not the duty of the officer to search the records to ascertain the existence of any such conveyance. Bacon v. Leonard, 4 Pick. 282. Before the sale of the equity the plaintiffs informed the officer, that they had a mortgage, and that it was recorded, but did not exhibit it to him. After an adjournment the officer sold the equity to the creditor in the second execution, and on the day of the sale applied the surplus to satisfy in part that execution. It is objected, that the notice to the officer was not sufficient to protect him. And it was not sufficient to have authorized him to pay to the plain tiffs without an exhibition of their title. But it was sufficient to inform him, that they asserted a claim to it, and to make it his duty to retain the money in his hands for a reasonable time after it was received, to enable them to establish their title by an exhibition of it, and demand of the money. The plaintiffs might reasonably conclude, that the purchaser would require the whole of the day of sale to make his payment and obtain his title; and the officer having on that day applied it to the second execution, did not afford them a reasonable opportunity to exhibit their title and demand the money, which he ought to have presumed from the previous notice would have been done in proper season. The notice was sufficient to put the officer on his guard and to prevent his applying the money in that hasty manner to the second execution ; and he thereby committed a wrong, for which he must be responsible.

The defendant is to be defaulted, and judgment entered for the amount agreed,